ACTIVE PROJECTS (continued)
Project Title Description Current Phase Scheduled
Completion
Status/Notes
Civic Center
Parking
Analysis
Analyze the parking
requirement for the
Civic Center.
Implement
mitigation measures
identified in 2018
report.
Feasibility/
Report,
Implementation
Ongoing,
Book Drop
lane
completed
Torre Avenue Book Drop
completed Summer 2022. New
project planned: additional
surface parking spaces behind
Community Hall. Implementation
of mitigation measures dependent
upon increased staff parking
demands at City Hall.
DeAnza Blvd
Buffered Bike
Lanes
Restripe De Anza
Blvd to include a
painted buffered
zone between the
existing bike lane
and the vehicle
lanes.
Design Summer
2023
Design Process underway
Tamien Innu
Trail – East &
Central
Segments
(Externally
Funded)1
Design and
construct an offstreet bicycle and
pedestrian facility
parallel to the I-280
HWY, from De
Anza Blvd. Wolfe
Road (Central),
from Wolfe Rd. to
Vallco Parkway
(East)
Design Spring 2024
for East
segment;
Fall 2024 for
Central
Segment
Design phase for Central
segment will pause now that
IS/MND is underway; East
segment will continue into Final
Documentation, Bid and
Construction.
McClellan Road
Separated Bike
Corridor, Phase
3 (Externally
Funded, in
part)
Improve pedestrian
and bicycle safety
by reconfiguring the
intersection and
vehicle movements.
Bid Summer
2023
Bids for Construction received
and were greater than
Engineer’s Estimate.
School Walk
Audit
Implementation
(Externally
Funded, in
part)
Construct
infrastructure
related
improvements
around schools that
were identified as
part of the
comprehensive
School Walk Audit
study.
Ongoing/
Construction
Ongoing
P
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r ACTIVE PROJECTS (continued)on Current Phase Scheduled Completion Status/Notes Project Title Description Current Phase Scheduled
Completion
Status/Notes
Stevens Creek
Boulevard CL
IV Bikeway -
Phase 2 –
Design &
Construction
(Externally
Funded, in
part)2
Design and
Construction of the
separated bikeway
along Stevens Creek
Blvd from Wolfe
Road to DeAnza
Blvd (2A) and De
Anza Blvd to US-85
(2B).
Design/Bid 2024 Phase 2A Construction will be
posted for public bid process in
in late Summer 2023. Phase 2B
Design is underway.
Stevens Creek
Boulevard CL
IV Bikeway –
Bandley Drive
(Externally
Funded, in
part)
Signal upgrades at
Bandley Drive.
Design/Bid 2024 This work is combined with
Construction of Phase 2B of the
SCB bikeway project. Phase 2B
Design is underway.
Traffic Calming Funding to respond
to citizen requests
for traffic calming to
reduce vehicle
speeds, improve
pedestrian and bike
safety.
Ongoing Ongoing Ongoing; responding to resident
concerns when they occur.
ADA
Improvements
(Multi-year
funding)
This is an ongoing
program funded
annually to improve
accessibility at all
public facilities
throughout the
City.
Design Ongoing Undertaking improvements at
Wilson Park, Wintergreen Dr.
entrance.
City Hall and
Community
Hall
Improvements
(Programming
and Feasibility)
Programming,
Feasibility and
Community
Outreach to form
the basis of a
renovation strategy
for the buildings.
Feasibility/
Report
N.A. Meetings with City Hall Project
Subcommittee are complete.
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ACTIVE PROJECTS (continued)
Project Title Description Current Phase Scheduled
Completion
Status/Notes
City Hall
Annex (10455
Torre Avenue
Improvements)
Program, plan and
build facility
improvements
required for interim
facility to
accommodate staff
while City Hall is
remodeled, as well
as the long-term use
of this facility.
Design Fall 2024 Design process underway. EOC
scope added to the project in
October 2022.
Citywide
Building
Condition
Assessment
Implementation
& Report
Update
Implement
recommendations
identified as a
priority in the
Comprehensive
Facility Condition
and Use
Assessment.
Construction/
Ongoing,
Sports Center Fire Panel
Replacement: work is complete,
awaiting final inspection. 2018
Report Update/Dashboard
creation: research and report
generation underway.
Library
Expansion
Project
Develop a design
and construct a
5600 SF addition to
the existing Library
building.
Building:
complete.
Donor wall and
Landscaping
are active.
2023
Building Construction is
complete. Donor wall final
panels fabrication and
installation is underway.
Landscaping project paused due
to staff availability.
All Inclusive
Play Area &
Adult Assistive
Bathroom
Facility
(Jollyman Park)
(Externally
Funded, in
part)3
At Jollyman Park,
Design and
construct an allinclusive
playground and an
adult-assistive
bathroom facility
adjacent to the new
AIPG.
Design Summer
2024
Design process nearing
completion. Bid and permit
phase will follow.
Annual
Playground
Replacement
(Multi-year
funding)
Replacement of
older playground
equipment that is
dated and worn.
Creekside Tot
Lot - Complete
Ongoing Creekside Tot Lot construction
complete; opened in October
2022. Creekside School-Age
playground design in process;
reviewed at May 2023 Parks &
Rec Commission. Grant funding
received for additional [smaller]
playgrounds – in process.
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ACTIVE PROJECTS (continued)
Project Title Description Current Phase Scheduled
Completion
Status/Notes
Blackberry
Farm Pool
Improvements
Make
improvements to
the pools and
facility related to
safety,
accessibility, and
maintenance.
Bid, Permit Winter 2023 Bid process is underway.
Construction is scheduled to
begin in Fall 2023.
Blackberry
Farm Golf
Renovation /
Alternative
Use Study
Study to determine
options for the BBF
Golf Course: minor
repairs or
alternative use
(‘natural habitat’).
Report is complete,
Council
presentation/process
in progress.
Consultants’ reports and
Public comments are
compiled. Report delivered to
Joint Commission (Parks &
Rec, Bicycle/Ped,
Sustainability) on 8/08/2022.
Awaiting opportunity to
present to Council for further
action (July 2023).
Citywide
[Satellite]
Community
Garden
(Wilson Park)
Develop a program
to establish
community
gardens
throughout the
City.
Construction Late Spring
2023
Construction is underway;
scheduled for completion in
Summer 2023.
Full-sized
Outdoor
Basketball
Court (Wilson
Park)
(Externally
Funded, in
part)
Install a full-size
basketball court at
a park, following
the Parks and
Recreation System
Master Plan.
Bid Summer
2023
Construction is underway;
scheduled for completion in
June 2023.
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ACTIVE PROJECTS (continued)
Project Title Description Current Phase Scheduled
Completion
Status/Notes
LawrenceMitty Park and
Trail Plan
Develop a Master
Plan for a
proposed
neighborhood park
located on several
acres of land
adjacent to
Saratoga Creek,
near the
intersection of
Lawrence
Expressway and
Mitty Way.
Design Winter 2025 The community
vision/outreach phase is
complete for the conceptual
design phase. The final
conceptual layout will be
developed in early 2023,
followed by environmental
clearance (CEQA) work. Final
design and permitting will
begin in late 2023.
Construction is anticipated to
begin in late 2024 and be
completed in late 2025.
Memorial Park
- Specific Plan
Design
Following the
findings of the
Master Plan
process, develop a
conceptual design
for Phase One
features and
amenities.
Design Fall 2023 Public input received;
conceptual design
alternatives developed.
Design plans and reports are
in process.
Park Amenity
Improvements
(Multi-year
funding)
Funding for
various park
amenities such as
benches, hydration
stations, outdoor
table tennis,
cornhole, shade
structures,
pickleball striping,
etc.
Construction Ongoing 8 hydration stations have
been installed at various
parks. Outdoor table tennis
tables have been installed at
Jollyman Park and Wilson
Park. Pickleball striping
completed at court 2 at
Memorial Park.
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ACTIVE PROJECTS (continued)
Project Title Description Current Phase Scheduled
Completion
Status/Notes
City Bridge
Maintenance
Repairs
(Externally
Funded, in
part)
Repair 5 bridges as
recommended in
the Caltrans Bridge
Report along with
additional
improvements to
prolong the useful
life of the bridges.
Advertise/Bid Summer
2023
Construction documents have
been completed. The project is
ready to be advertised for bid in
early 2023 and work completed
by summer 2023. The work is
partially funded (80%) through
the Bridge Preventative
Maintenance Program, a
federally funded program.
City Lighting
LED Transition
Assessment
Develop a strategy
to transition the
City's streetlight
infrastructure, and
other City operated
lights, from
induction to LED
fixtures to meet the
“Dark Sky”
requirements and
reduce light
pollution
Feasibility/
Report
Under
Review
Survey is complete. Council
requested revisions to the report.
This work is underway.
Pumpkin and
Fiesta Storm
Drain Project,
Phase 1 & 2
Design storm
drainage
improvements at
Pumpkin Drive,
Fiesta Lane, as
identified in the
Storm Drain Master
Plan.
Phase 1-
Advertise/Bid;
Phase 2-Design
Phase 1-
Summer
2023; Phase
2- TBD
Design is complete for Phase 1
and will be constructed
spring/summer 2023.
Preliminary site analysis and
design for Phase 2 will start in
early 2023.
Regnart Road
Improvements,
Phase 1
Phase 1 will
construct a
retaining wall to
stabilize the road
slope to the creek
from Sta 28+40 to
29+80 (approx. 140
LF).
Design, Permits 2023 Phase 1 design is complete.
Environmental permitting is
complete, and the project team is
getting ready to post the bid
documents so that construction
can begin in the Summer/Fall
2023.
Street Light
Installation -
Annual Infill
(Multi-year
funding)
Design and install
streetlights on an as
needed basis.
Complete Ongoing Installations for this fiscal year
are ongoing. Year 3 of 5.
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COMPLETED PROJECTS (or nearly complete)
Project Title Description Current Phase Scheduled
Completion
Status/Notes
Bicycle
Boulevard
Interim
Improvements,
Ph. 2
Improvements from
2016 Bicycle
Transportation Plan.
Construction March 2023 Completion expected in
February/March 2023.
Homestead/De
Anza – Design
&
Construction4
Modify traffic signal
to relocate medianmounted mast arm
poles to the corners.
Complete December
2022
Regnart Creek
Trail Fencing
Construction of
privacy fencing
along properties
abutting Regnart
Creek trail.
Construction March 2023
The Regnart Creek Trail opened
in March 2023. The fencing
project team is working on some
minor final items.
Stelling and
Alves
Crosswalk
Installation
Install a crosswalk
and pedestrianactuated RRFB
across Stelling at the
north leg of the
intersection with
Alves Drive.
Complete October
2022
Annual
Playground
Replacement5
Replacement of older
playground
equipment that is
dated and worn.
Creekside Tot
Lot - Complete
Creekside Tot Lot construction
complete; opened in October 2022.
Memorial Park
- Pond
Repurposing
Design and
construct Memorial
Park improvements,
specifically
addressing the
immediate state of
the drained ponds.
Construction April 2023
Operations and Maintenance
phase is underway to establish
the plantings before opening.
Silicon Valley APWA selected
this project as one of the winners
of its 2023 Award Program.
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COMPLETED PROJECTS (continued)
Project Title Description Current Phase Scheduled
Completion
Status/Notes
Sports Center
Community
Needs Analysis
Evaluate the
potential long-term
needs of the facility,
the cost of
renovations and
repairs and the cost
effectiveness of
those
improvements.
Complete
P&R staff performed some
analysis and determined shortterm improvements/repairs.
Tree Inventory
- Stevens Creek
Corridor
Inventory and map
City-owned trees
that are within the
Stevens Creek
Corridor, including
the BBF golf course.
Feasibility/
Report
February
2023
Survey is complete, report under
review by staff.
Retaining Wall
Repair -
Cordova Road
Replace failing
retaining wall
lagging with City
forces.
Complete
Construction completed Summer
2022.
Sidewalk
Improvements
- Orange &
Byrne
Acquire right-ofway as needed,
initiate design and
construction of
sidewalks where
there are gaps, as
well as curb, gutter,
and drainage
improvements.
Complete Fall 2022
Byrne Avenue improvements
were completed in 2019. Civil
work (sidewalk, curb, .and
gutter) is complete on Orange
Avenue. Utility pole relocations
on Orange Avenue will be
performed by the utility
companies (PG&E, AT&T,
Comcast) in 2023.
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PROJECTS IN THE QUEUE
Project Title Description Current Phase Scheduled
Completion
Status/Notes
Tamien Innu
Trail - West
Segment
Design and
construct an offstreet bicycle and
pedestrian facility
parallel to the I-280
HWY, from the Don
Burnett Bicycle –
Pedestrian Bridge to
De Anza Blvd.
Deferred
This segment will be on hold
until the other segments are
designed.
McClellan
Road
Separated Bike
Corridor -
Byrne Ave to
Imperial Ave,
Phase 4
Design and
construct separated
bike lanes on
McClellan Rd. from
Imperial Ave to
Byrne Ave.
Deferred
Phase 4 on hold until ROW’s are
acquired.
Electric Vehicle
Parking
Expansion
Expansion of the
existing level 2
charging ports at
municipal
properties from
twelve (12) ports to
thirty-two (32)
ports. In addition,
install five (5) level
3 (DC Fast
Charging) ports.
RFQ
Project paused due to staff
availability.
Previously identified grant
fundings are unavailable. Scope
revision is necessary and
underway. RFQ process (not
RFP/Bid) approved by Council
on 11/01/2022.
Interim City
Hall
Establish an interim
facility to
accommodate City
Staff if existing City
Hall were to be
replaced or
significantly
remodeled.
Deferred
This funding will be required to
provide City Hall services while
the building is under
construction.
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DEFERRED PROJECTS (continued)
Project Title Description Current Phase Scheduled
Completion
Status/Notes
QCC Multi-Site
Sustainable
Infrastructure
Upgrade
Develop
recommendation for
Council on a
complete facility
upgrade for heating
and cooling system,
emergency power
system, and
renewable energy.
RFQ 2024
Project paused due to staff
availability.
The RFQ process for energy
service companies (ESCOs) to
perform audit and initiate
improvements was completed.
Award of Contract will come to
City Council in early 2023.
Stocklmeir,
Bryne and
Blesch:
Inspection
Reports and
Analysis
Instigate property
inspection reports
and work with
outside consultants
to develop initial
use and business
strategies
appropriate for the
three residential
properties owned
by the City.
Feasibility
Study
Summer
2023
Project paused due to staff
availability.
Memorial Park
- Amphitheater
Improvements
Design and
construct Memorial
Park improvements,
specifically
addressing the
needs of the
Amphitheater.
RFQ 2024 Project paused due to staff
availability.
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DEFERRED PROJECTS (continued)
Project Title Description Current Phase Scheduled
Completion
Status/Notes
Stevens Creek
Corridor Park
Chain Master
Plan
Study the various
uses of public lands
along Stevens Creek
for optimal public
use and operation
and develop a
master plan.
Deferred
On hold, pending completion of
Blackberry Farm Golf
Renovation/ Alternative Use
Study
City Lighting
LED
Improvements
Implement the
transition of City's
streetlight
infrastructure from
induction and other
fixtures to LED
fixtures to meet the
"Dark Sky"
Ordinance
requirements and
reduce light
pollution and
energy cost.
Deferred Awaiting finalization of LED
report before initiating this work.
Notes:
1. Previously listed as two projects: I-280 Trail – East and I-280 Trail Central Segments. Name change to “Tamien Innu”also updated.
2. Previously listed as two projects: Stevens Creek Boulevard CL IV Bikeway - Phase 2 – Design, Stevens Creek Boulevard CL IV Bikeway - Phase 2 – Construction.
3. Previously listed as two projects: All Inclusive Play Area, and AIPG Adult Assistive Bathroom Facility (Jollyman Park).
4. Previously listed as two projects: Homestead/De Anza Design, and Homestead/De Anza Construction.
5. Annual Playground Replacement project is listed in both Active and Completed Projects. The project is ongoing and additional playgrounds are planned to be initiated, but this also notes that one playground was completed in this fiscal year.:
6. Previously listed as two projects:
7. Previously listed as two projects:
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FY 2023 - 2024 CIP PROPOSAL CIP PROJECT RANKINGS
PROPOSED AND EXISTING PROJECTS
COUNCIL, COMMUNITYSAFETYMASTER PLANONGOINGEXTL FUNDS
SUSTAINABILITY
STAFFING
Current and Proposed Projects
(Highest priority projects down to lowest priority projects) *FY23-24 proposed projects are bold text.
City Funding
External
Project
Funding
Total Project
Budget
FY23-24 City
Proposed
Funding
Prioritization Summary
x x Blackberry Farm Golf Renovation / Alternative Use Study $100,000 $0 $100,000 $0 Study is nearly complete. Report expected to be finalized in 2023.
x x x City Lighting LED Transition Assessment $50,000 $0 $50,000 $0 Study is nearly complete. Report expected to be finalized in 2023.
x x Community Garden - Wilson Park $390,000 $0 $390,000 $0 Project under construction.Completion projected for Summer 2023.
x x x Full-sized Outdoor Basketball Court -Wilson Park $295,451 $214,549 $510,000 $0 Project under construction. Completion projected for Summer 2023.
External Funding Source: California Drought,
Water, Parks, Climate, Coastal Protection,
and Outdoor Access for All Act of 2018 PER
CAPITA PROGRAM Prop.68
x x Memorial Park - Specific Plan Design $650,000 $0 $650,000 $0 Project is nearing completion and is highly recommended in Parks and Recreation
Master Plan. Design is nearly completion,
pending Council and Commission
review/comment.
x x x ADA Improvements (Annually funded) $100,000 $0 $100,000 $100,000 Priority as safety criteria, community-driven, master plan driven, and as an ongoing
project. Annually Funded project,
contributes to the City's Goals to improve
Accessibility for the Community, and to
mitigate potential litigation.
x x x All Inclusive Play Area & Adult-Assistive Bathroom Facility (Jollyman Park)
$2,080,000 $2,473,000 $4,553,000 $0 This project provides new inclusive public amenities and significant grant funding has
been awarded to the project. $660K has
been encumbered (spent) to date. External
funding sources include County grant, State
budget allocation, and PG&E donation.
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FY 2023 - 2024 CIP PROPOSAL CIP PROJECT RANKINGS
PROPOSED AND EXISTING PROJECTS
COUNCIL, COMMUNITYSAFETYMASTER PLANONGOINGEXTL FUNDS
SUSTAINABILITY
STAFFING
Current and Proposed Projects
(Highest priority projects down to lowest priority projects) *FY23-24 proposed projects are bold text.
City Funding
External
Project
Funding
Total Project
Budget
FY23-24 City
Proposed
Funding
Prioritization Summary
x x x x Annual Playground Replacement (Year 4 of 5) $300,000 $0 $300,000 $300,000 Additional $300,000 requested for FY23-24 .
Priority to address safety with replacing
aging playground equipment. Additionally,
the replacements are community-driven,
master plan driven, and this is an ongoing
project.
x x City Bridge Maintenance Repairs $166,802 $1,287,448 $1,454,250 $0 Necessary to ensure bridge facilities are being maintained. A large portion of the
project is funded with external funds.
External Funding Source: FHWA Highway
Bridge Program
x x x x x City Hall Improvements (80,000 SF, new facility, $72M total) $500,000 $0 $500,000 $0 No additional funds requested at this time.
Priority for Safety criteria. Seismic retrofit
and systems upgrades are strongly needed.
x Library Expansion Project (landscaping and donor wall) $8,705,438 $0 $8,705,438 $0 Donor wall is nearing completion.
Landscaping will be implemented once
external grant funds are received.
x x x x Regnart Road Improvements (all phases) $1,303,646 $0 $1,303,646 $0 Priority for Safety criteria. Phase One of Two, to enhance stability of road through
upgraded drainage, erosion control,
retaining walls, railings, and more.
Additional funding for construction of Phase
1 will be probably be required.
x School Walk Audit Implementation $23,989 $1,221,863 $1,245,852 $0 Enhances pedestrian safety for children walking/biking to school. Fully funded by
outside sources. No use of City funds
anticipated at this time. External funding
source includes donation from local
business.
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FY 2023 - 2024 CIP PROPOSAL CIP PROJECT RANKINGS
PROPOSED AND EXISTING PROJECTS
COUNCIL, COMMUNITYSAFETYMASTER PLANONGOINGEXTL FUNDS
SUSTAINABILITY
STAFFING
Current and Proposed Projects
(Highest priority projects down to lowest priority projects) *FY23-24 proposed projects are bold text.
City Funding
External
Project
Funding
Total Project
Budget
FY23-24 City
Proposed
Funding
Prioritization Summary
x x Stevens Creek Blvd CL IV Bikeway - Bandley Dr. Signal $124,432 $25,658 $150,090 $0 Enhances bicycle safety along a major arterial. Number 1 priority project from
2016 Bicycle Transportation Plan. External
funding source includes developer
contribution.
x x Stevens Creek Blvd CL IV Bikeway - Phase 2 (design & construction)
$2,350,000 $807,000 $3,157,000 $0 Enhances bicycle safety along a major arterial. Number 1 priority project from
2016 Bicycle Transportation Plan. Design is
complete. Project anticipated to be open for
bids soon.
External Funding Source: OBAG2 grant
x x x Stevens Creek Blvd./Calabazas Creek Storm Drain Repair $420,000 $0 $420,000 $420,000 Priority for Safety criteria. Addressing storm drain repairs/upgrades to avoid potential
sinkhole issues.
x x Blackberry Farm Pool Improvements $750,000 $0 $750,000 $0 Project is necessary to ensure ongoing operation of the pool facility. Design is
complete. Project anticipated to be open for
bids soon.
x x x x Citywide Building Condition Assessment Implementation $1,006,470 $0 $1,006,470 $2,000,000 $2,000,000 requested.
Priority for Safety criteria and ongoing
operation of City facilities. Many deferred
maintenance projects have escalting urgency
and thus priority. The plan is to first address
aged/deficient fire/smoke alarm systems
needed at many City facilities. Further
projects will focus on fiscal payback where
appropriate.
x x Lawrence-Mitty Park and Trail Plan $5,940,909 $0 $5,940,909 $0 Project is funded through Development Agreement Funds from Private Developer.
x x McClellan Road Separated Bike Corridor, Phase 3 $164,410 $1,160,000 $1,324,410 $0 Necessary to enhance bicycle and pedestrian safety. Project significantly funded by
outside sources. Design is complete.
Construction anticipated to begin in 2023.
External Funding Source: VERBS grant
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FY 2023 - 2024 CIP PROPOSAL CIP PROJECT RANKINGS
PROPOSED AND EXISTING PROJECTS
COUNCIL, COMMUNITYSAFETYMASTER PLANONGOINGEXTL FUNDS
SUSTAINABILITY
STAFFING
Current and Proposed Projects
(Highest priority projects down to lowest priority projects) *FY23-24 proposed projects are bold text.
City Funding
External
Project
Funding
Total Project
Budget
FY23-24 City
Proposed
Funding
Prioritization Summary
x x Pumpkin and Fiesta Storm Drain Project (all phases) $2,000,000 $0 $2,000,000 $0 Necessary to enhance public safety and reduce the risk of flooding. This area has
flooded multiple times in the past. Priority in
master plan. Design is complete.
Construction anticipated to begin Summer
2023. Funds for the project are provided
through the storm drain account.
x x x Stevens Creek Bridge Repair $172,000 $688,000 $860,000 $172,000 Priority for Safety criteria, following recommendations from inspection reports
issued. Federal funding is coming available
after a 3 year wait. CIP staffing is in place
due to existing Bridge Maintenance project.
External Funding Source: FHWA Highway
Bridge Program; Funding revised/confirmed
since 3/07/23 presentation
x City Lighting LED improvements $1,300,000 $1,300,000 $0 Project would provide $1M+/- in savings over the next 10 years.
x De Anza Boulevard Buffered Bike Lanes $358,741 $166,259 $525,000 $0 Project enhances bicycle safety. Is included in the 2016 Bicycle Transportation Plan.
Design is underway. VTA Grant funding is
now available (must first be approved by
Council).
External Funding Source: TDA Article 3
Guaranteed Funds
x x Tamien Innu - East & Central Segment $0 $3,596,000 $3,596,000 $0 Project is in design and is currently funded by external sources that include a local
business, Measure B Capital Projects, TDA3
Grants
x x Tamien Innu - West Segment $0 $600,000 $600,000 $0 Project is on hold. Current funding for the project is all external funding. External
funding source includes donation from local
business.
x x x x x City Hall Annex $3,000,000 $0 $3,000,000 $0 Necessary to accommodate public services when/if City Hall is closed for
renovations/reconstruction. Also, will
provide community reciliency as an EOC.
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FY 2023 - 2024 CIP PROPOSAL CIP PROJECT RANKINGS
PROPOSED AND EXISTING PROJECTS
COUNCIL, COMMUNITYSAFETYMASTER PLANONGOINGEXTL FUNDS
SUSTAINABILITY
STAFFING
Current and Proposed Projects
(Highest priority projects down to lowest priority projects) *FY23-24 proposed projects are bold text.
City Funding
External
Project
Funding
Total Project
Budget
FY23-24 City
Proposed
Funding
Prioritization Summary
x x x Street Light Installation - Annual Infill (Annually funded) $75,000 $0 $75,000 $35,000 Limited additional funds, going forward.
Nice-to-have initiative to address resident
concerns regarding lack of street lighting
where gaps in system exist.
x x x x Park Amenity Improvements (Year 4 of 5) $200,000 $0 $200,000 $0 No additional funds, going forward. Nice-tohave initiative following Community requests and Master Plan directives. Existing
project funding can be employed to
implement near-future amenities.
x x x x Bollinger Road Bike Improvements $4,000,000 $4,000,000 $200,000 Improves sustainable means of transportation and builds upon master plan
priorities. Initial Traffic Study and
preliminary designs can be initiated in this
FY by PW.
x x Civic Center Microgrid $150,000 $102,460 $252,460 $150,000 Supports our CAP goals and improves resiliciency and energy efficiency at Civic
Center. FEMA/CalOES funding received.
Staffing TBD. External funding source
includes Hazardous Mitigation Program
grant funding through CalOES/FEMA.
x Electric Vehicle Parking Expansion $200,000 $208,000 $408,000 $0 This project prepares for the future. This project can be defunded with hopes that
further grant funding can secured.
External Funding Source: CAL e-VIP level 2
charging grants. Current Grant funding
expired, but many grant opportunities are
available when the project is ready.
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FY 2023 - 2024 CIP PROPOSAL CIP PROJECT RANKINGS
PROPOSED AND EXISTING PROJECTS
COUNCIL, COMMUNITYSAFETYMASTER PLANONGOINGEXTL FUNDS
SUSTAINABILITY
STAFFING
Current and Proposed Projects
(Highest priority projects down to lowest priority projects) *FY23-24 proposed projects are bold text.
City Funding
External
Project
Funding
Total Project
Budget
FY23-24 City
Proposed
Funding
Prioritization Summary
x x x x x Fiber Expansion - City Hall Annex $320,000 $320,000 $320,000 Priority to enhance resiliency for EOC, and as an current project. Upgrade for the new
EOC facility. Project can be staffed in
conjunction with the existing CH Annex
project. One of the priority projects outlined
in the City's Fiber Master Plan.
x Multi-Site Sustainable Infrastructure Upgrade $284,449 $217,551 $502,000 $0 Project can be defunded.
External Funding Source: PG&E on-bill
financing, Government and K-12 Energy
Efficiency Program (GK12), Inflation
Reduction Act direct-pay.
x x x x San Tomas Aquino/Saratoga Creek Trail Extension, Feasibility Study
$150,000 $150,000 $150,000 Improves sustainable means of transportation and builds upon master plan
priorities. Requested by Parks & Rec
Commission, and Bike Ped Commission.
Initial feasibility report can be initiated in
this FY by PW staff.
x Stevens Creek Corridor Park Chain Master Plan $406,470 $0 $406,470 $0 Project can be defunded. x Civic Center Parking Improvements $1,000,000 $0 $1,000,000 $0 Project can be defunded. Conditions have changed since this project was funded.
x x Bicycle Boulevard Interim Improvements, Phase 3 $1,197,000 $0 $1,197,000 $0 These are interim improvements, and phase 3 can be defunded.
x City-Owned Properties Analysis (Stocklmeir, Byrne, Blesch) $90,000 $90,000 $0 This project is now part of the City Work Plan. Project can be defunded in CIP and
funded through CWP.
x Interim City Hall $501,162 $0 $501,162 $0 This project can be defunded. x x McClellan Road Separated Bike Corridor, Phase 4 (Byrne Ave to Imperial Ave)
$0 $1,000,000 $1,000,000 $0 Project can be defunded and staff can work with external funding donor to reallocate
funds to other priorities. Project is urrently
not feasible due to lack of right of way.
External funding source includes donation
from local business.
x Memorial Park - Amphitheater Improvements $1,150,000 $0 $1,150,000 $0 Project can be defunded. The planned functional improvements can be
implemented as part of revitalized park
design efforts in the future.
x x Traffic Calming $200,000 $0 $200,000 $0 Project can be defunded.
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CITY OF CUPERTINO
Agenda Item
23-12157 Agenda Date: 5/16/2023
Agenda #: 7.
Subject: Consider authorizing the City Manager to execute a services agreement with Arctic Wolf Networks, Inc., for Managed Detection and Response (MDR) security services, for a total cost of $219,552.46 over three years.
1.Authorize the City Manager to execute a services agreement with Arctic Wolf Networks, Inc., for Managed Detection and Response (MDR) Security Services, for a total cost of $219,552.46 over three years.
2. Find under Municipal Code section 3.22.060(B). that the formal competitive bidding procedures are impractical for procurement.
CITY OF CUPERTINO Page 1 of 1 Printed on 5/10/2023
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CITY COUNCIL STAFF REPORT
Meeting: May 16, 2023
Subject
Consider authorizing the City Manager to execute a services agreement with Arctic Wolf Networks, Inc., for Managed Detection and Response (MDR) Security Services, for a total cost of $219,552.46 over three years.
Recommended Action
1. Authorize the City Manager to execute a services agreement with Arctic Wolf Networks, Inc., for Managed Detection and Response (MDR) Security Services, for a total cost of $219,552.46 over three years.
2. Find under Municipal Code section 3.22.060(B). that the formal competitive bidding procedures are impractical for procurement.
Reasons for Recommendation
This proposed Agreement with Arctic Wolf Network, Inc., provides monitoring of the City’s network, and log management. As an important component of the City’s expanded Infrastructure (IT) security program, the monitoring process notifies the City’s Infrastructure division of suspicious activity and hacking attempts and provides information on mitigation steps.
Benefits from this service include:
• Additional layer of protection from viruses and malicious software. • Server and Endpoint monitoring.
• Vulnerability scanning of network environment.
• 24x7 analysis of the City’s inbound and outbound Internet traffic. • Real-time notifications of suspicious activity.
Innovation & Technology highly recommends moving forward with Arctic Wolf Network, Inc., for MDR security services and foregoing searching for a different vendor. The reasons for this are due to Arctic Wolf’s knowledge of our network environment and their good rapport with Public Agencies throughout the Bay area.
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The last two-year contract with Arctic Wolf Network, Inc., ended on March 1, 2019. The City has renewed one-year terms thereafter.
Staff recommends that Council approve the execution of a three-year contract with Arctic Wolf Networks, Inc., to provide efficient and uninterrupted MDR security services for Cupertino’s network operations. Migrating to an alternative platform other than Arctic Wolf would necessitate taking a considerable step backwards and could potentially undermine our cyber defense. It is important to note that our current defense strategies have been honed over years of analyzing network traffic patterns specific to the City's infrastructure and fine-tuning our security measures. Therefore, a shift to a new platform may compromise the efficacy of our existing cybersecurity infrastructure. Staff recommends that Council make the findings required under Municipal Code section 3.22.060(B) and approve the waiver of competitive bidding procedures under Chapter 3.22.1 Sustainability Impact
No impact.
Fiscal Impact
The cost of Arctic Wolf Network, Inc., subscription for the next three years is $219,552.46, and is budgeted in the Infrastructure division budget, GL account 610-34-310 700-702 Contract Services and GL account 610-34-310 750-204 Proactive Managed Risk and Security Monitoring Special Project.
The table below outlines the subscription cost.
Year Price Services Provided
FY22-23 $69,643.92 Managed Detection and Response (MDR) Security Services FY23-24 $73,126.12 Managed Detection and Response (MDR) Security Services FY24-25 $76,782.42 Managed Detection and Response (MDR) Security Services California Environmental Quality Act
Not applicable.
_____________________________________
1 Municipal Code section 3.22.060(B) authorizes the waiver of competitive bidding procedures if “pursuant to a written recommendation of the City Manager, the City Council finds that the use of the formal competitive bidding procedure is not practical due to limitations on source of supply, necessary restrictions in specifications, necessary standardization, quality considerations, or if other valid reasons for waiving the formal competitive bidding process procedures appear.”
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Prepared by: Tommy Yu, Infrastructure Manager
Reviewed by: Bill Mitchell, Chief Technology Officer
Michael Woo, Senior Assistant City Attorney
Approved by: Pamela Wu, City Manager
Chris Jensen, City Attorney
Attachments:
A – Arctic Wolf Solutions Agreement
B – Scope of Services
C – Quote
D – Proof of Insurance
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EXHIBIT A DocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 A. ARCTIC
r--~ WOLF THE LEADER IN SECURITY OPERATIONS
Arctic Wolf Solutions Agreement - Frequently Asked Questions Thank you for reviewing the Arctic Wolf Solutions Agreement. We appreciate your interest in becoming a customer of Arctic Wolf.
We hope the below information will help you better understand how Arctic Wolfs security solutions (the "Solution" or "Solutions") contracting model works.
Please note that this information is not considered part of the contract at any time. This is provided for information purposes only.
Who is Arctic Wolf?
• Arctic Wolf is a cybersecurity company that provides security operations Solutions, including managed detection and response, managed risk, and managed security awareness to mitigate our customers' exposure to cyber threats. • We offer standard, highly configurable, Solutions to our customers which allows us to leverage the power of scale across our customer base to deliver cost effective and operationally efficient Solutions. • Arctic Wolfs customers may subscribe to and license for the purchased Subscription Term the right to receive and use, in whole or in part, the various Solutions offered by Arctic Wolf. All customers subscribing to a particular Solution are on the same release using the same operational infrastructure and the same security and support operations for such Solution.
Who is the Authorized Partner?
Arctic Wolf leverages its channel partner relationships (its "Authorized Partners") to resell our Solutions to our customers. The Authorized Partner may be se lected by you or introduced to you by Arctic Wolf.
The Authorized Partners act as the financial arm in our transactions with you. You contract directly with the Authorized Partner related to purchase and payment of your subscription to our Solutions. The Authorized Partners are not involved in the delivery of our Solutions and, therefore, are not contemplated in the obligations and liabilities within the Solutions Agreement related to the delivery of our Solutions to you. You and the Authorized Partner will have separate contractual terms in place to address the financial aspects of the subscription transaction.
What data do you provide to Arctic Wolf?
Arctic Wolf monitors systems telemetry data received from our customers via the sensors, scanners and agents our customers install within their environment. The systems telemetry data allows us .to identify potential security threats that may impact your environment. Systems telemetry data may include names, email addresses, phone numbers, usernames, passwords IP Address, geolocation data, deviceID, and other system log metadata. Arctic Wolf should not receive other more sensitive information, including the content of your business files, your customer's business infom1ation, social security numbers, financial information, etc.
We trust that our customers have appropriate system and operational controls in place to prevent disclosure of such information to us.
Why does Arctic Wolf reserve the right to change certain terms within the Solutions Agreement? Like other subscription-based solutions providers, customer-generic te1ms that apply across our customer base are set forth as url links within the overarching Solutions Agreement. This allows Arctic Wolf to maintain consistency in the Solutions across its customers.
To address any customer concerns related to this model, Arctic Wolf: (i) provides that the url terms are last in line from an order of precedence; (ii) agrees that we will not materially decrease the features and fun ctionalities during any customer then-current Subscription Term; (iii) provides notice of the change; and (iv) allows customers to object to any specific modification for the remaining period of their then-current Subscription Term.
Does Arctic Wolf offer service levels?
Arctic Wolf provides for response time service levels. These service levels can be found in the Managed Detection and Response Solutions Terms located at https://arcticwolf.com/terms/. These terms are password protected. Please contact your sales representative for the password.
Does Arctic Wolf offer termination for convenience?
As a subscription Solution, Arctic Wolf does not allow for te1mination for convenience. Arctic Wolf relies on committed subscription terms, in part, to manage our dedicated CST resource model.
We have special data security requirements. Can we include our security and privacy requirements in the Solutions Agreement?
©2020 Arctic Wolf Networks. Inc. All rights reserved. I Public Page 1 of 13 331
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DocuSign Envelope ID DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 We are unable to include customer specific data security requirements in our Solutions Agreement. We offer a consistent Solution across our customer base. Arcti c Wolf maintains the same IT security contro ls and processes for all customers. These contro ls and processes are reflected in our SOC2 Type Ll Report and its ISO 27001 certifi cati on.
Where is the Statement of Work for the services described in the Solutions Agreement? Arctic Wolfs prov ides a subscription Solution that, depending on the Solution, is comprised of hardware, software and services. All designated components of the Solution are required to use and receive the Solutions. Whil e services are an important part of the Solution, we do not define the services component of the Solutions as separate " professional services". Unlike a traditional professiona l service offering, the services do not include deliverables and are not subj ect to acceptance.
Can we make changes to the Beta Terms?
Because participati on in the beta programs is completely voluntary and there is no cost fo r participation, we do not agree to modificati ons to the beta terms.
We are a Covered Entity under IDPAA. Can we use our Business Associate Agreement? Arctic Wolf should not receive PHI during the deli very of the Solutions to you, nor does Arctic Wolf process PHJ on your behalf.
Accordingly, Arcti c Wolf is not a business associate under HIP AA. Arctic Wolf appreciates that certain customers may take a conservati ve approach and require a business assoc iate agreement (BAA) to cover the exchange of any inadvertently disclosed PHI provided during our relationship. Given this, Arctic Wolf is amenabl e to execution of its templ ate BAA in which each party's li abilities and requirements are strictly construed to HIP AA requirements and incorporates such terms by url reference in the Solutions Agreement.
(For information purposes only, this FAQ does not form part of any contract) Arctic Wolf Networks - Solutions Agreement
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DocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8
SOLUTIONS AGREEMENT
(Direct)
This Solutions Agreement (the "Agreemenf') is a legal agreement entered into by and between the Customer identified in the signature block below ("Customer') and Arctic Wolf Networks, Inc. ("Arctic Wolf') and governs any order forms, quotes, or other ordering document ("Order Form") executed by the Customer that reference this Agreement. An Order Form will be issued to Customer by Arctic Wolf. This Agreement is effective on the date last executed in the signature block below (the "Effective Date"). This Agreement permits Customer to purchase subscriptions to the Solutions, as defined below, identified in the Order Form from Arctic Wolf and sets forth the terms and conditions under which those Solutions will be delivered. The Agreement consists of the terms and conditions set forth below, any attachments or exhibits identified herein and any Order Forms that reference this Agreement. If there is a conflict between the terms below, the Order Form, or the terms set forth in an URL referenced herein (such URL terms, the "Terms"), the documents will control in the following order: the Order Form , this Agreement, and the Terms.
In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged , the parties agree as follows :
1. Scope.
1.1 Solutions. Customer will purchase and Arctic Wolf, together with its Affiliates, will provide the specific products and services (each a "Solution" or collectively, "Solutions") as specified in the applicable Order Form. For purposes of this Agreement, "Affiliate" means any company or other entity, which directly or indirectly controls , is controlled by or is under joint control with Arctic Wolf.
A Solution will be comprised of the following components:
Managed Detection & Response
Solution
Software The object form of any software,
including any operating system
software included in the Equipment,
and add-ons offering enhanced
features and functionality made
generally available to Arctic Wolf
customers from time-to-time
Equipment Virtual appliances or physical sensors
Content N/A
Content Management N/A
Hosting Environment
Services Support, onboarding services, and
services provided by Security
Services, all as described in the
Solutions Terms (defined below)
Professional Services As agreed by the parties in
accordance with Section 3
Platform One (1) vSensor 100 series
Unlimited data ingestion
Access to the Customer Portal
Use of the Arctic Wolf Agent
90-day Log Retention (unless another
retention period is purchased bv
Arctic Wolf Networks - Solutions Agreement
Last Updated: 2023.02.01
Managed Risk Solution Managed Security Awareness
I Managed Security
Awareness+ Solution
The object form of any software, N/A
including any related to virtual
Equipment, if applicable, any
operating system software included
in the Equipment, and add-ons
offering enhanced features and
functionality made generally
available to Arctic Wolf customers
from time-to-time
Virtual appliances or physical N/A
scanners
N/A Online access and download
rig hts, if licensed by Customer,
to Customer learning content
and Content Compliance Pack
within the Administrator
Dashboard and/or Content
Library
N/A Access to and use of a cloudbased learning management tool (the "Administrator Dashboard")
and metrics related to the use of
the Content by Customer's users
Support, onboarding services, and Support, onboarding services, services provided by Security and Content modification
Services, all as described in the services, all as described in the Solutions Terms (defined below) Solutions Terms (defined below) As agreed by the parties in As agreed by the parties in accordance with Section 3 accordance with Section 3
Unlimited data ingestion N/A
Access to the Customer Portal
Use of the Arctic Wolf Agent
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DocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 Customer and set forth on an Order
Form)
1.2 License Grant. The Solutions are provided on a subscription basis for a set term designated on the Order Form (each, a "Subscription Term") for the one-time costs and subscription fees set forth therein (the "Fees"). Provided Customer is in compliance with the terms of this Agreement, including payment of Fees, Arctic Wolf grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive right and/or license during the Subscription Term, to the extent a component of the Solutions being licensed by Customer as set forth in Section 1.1 above, to:
(i) Install, use and access the Software,
(ii) Use the Equipment for purposes of the use of the Solutions, (i ii) Obtain and use the Services in conjunction with Customer's use of the Solutions, (iv) Load Customer's users and associated information for delivery of Content and use of the Administrator Dashboard, (v) Access th e Customer Portal and/or Administrator Dashboard, as applicable, subject to the Privacy Notice located at https://arcticwolf.com/privacy-policy-for-customer-portal-users/, as may be updated from time-to-time in accordance with Section 13 below (the "Privacy Notice") ,
(vi) Access and use the Platform features and functionality, (vii) Use Arctic Wolf Trademarks included in the Content in accordance with the Solutions Terms, and (viii) Distribute, display, transmit, and , if licensed by Customer, download certain Content in electronic format.
Customer may access and use the Solutions, and any Documentation associated therewith , solely for its own internal business purposes and in accordance with the term s and conditions of this Agreement, such associated Documentation, any scope of use restrictions and license counts , including by server, user, or such other licensing metric designated in the applicable Order Form, and the Solutions Terms found at https://arcticwolf.com/terms/solutionsterms/, as may be updated from time to time by Arctic Wolf in accordance with Section 13 herein (the "Solutions Terms"). "Documentation" means user manuals, training materials, product descriptions and specifications, and other printed information relating to the Solution, as in effect and generally available from Arctic Wolf, but expressly excluding marketing and sales collateral and materials.
1.3 Future Functionality. Subject to the warranties set forth in Section 10, Customer agrees that it has not relied on the promise of availability of any future functionality of the Solutions or any other future product or service in executing this Agreement or any Order Form.
Customer acknowledges that information provided by Arctic Wolf regarding future functionality should not be relied upon to make a purchase decision. Should Arctic Wolf offer additional optional functionality in the future that complement the Solutions, Customer may elect to subscribe to and obtain a license to the optional functionality for an additional fee.
1.4 Reserved.
1.5 Beta Solutions.
1.5.1 From time-to-time Arctic Wolf may invite Customer to try, at no charge, Arctic Wolf products, features, or functionality that are not generally available to Arctic Wolfs customers ("Beta Solutions"). Customer may accept or decline any such trial in its sole discretion. Any Beta Solutions will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import.
1.5.2 Restrictions and Disclaimers. Beta Solutions are provided for evaluation purposes and not for production use, are not supported , may contain bugs or errors, and may be subject to additional term s. To the full extent permitted by applicable U.S. and foreign consumer protection laws, Beta Solutions are not considered Solutions hereunder and are provided solely and exclusively "AS IS" with no express or implied warranty of any kind. TO THE FULL EXTENT PERMITTED BY APPLICABLE U.S. AND FOREIGN CONSUMER PROTECTION LAWS, (THE "CONSUMER PROTECTION LAWS"), CUSTOMER ASSUMES AND UNCONDITIONALLY RELEASES ARCTIC WOLF FROM ALL RISKS ASSOCIATED WITH THE USE OF ANY BETA SOLUTIONS. Arctic Wolf may discontinue the Beta Solutions at any time in its sole discretion and Arctic Wolf will make reasonable efforts to provide Customer with advanced notice of any such discontinuance. Arctic Wolf does not promise or represent that Beta Solutions will be made generally available.
1.5.3 NO DATA RETENTION . ANY DATA ENTERED INTO THE BETA SOLUTIONS MAY BE PERMANENTLY LOST UNLESS CUSTOMER:
(i) PURCHASES A SUBSCRIPTION TO THE COMMERCIALLY AVAILABLE VERSION OF THE BETA SOLUTIONS AS MAY BE MADE AVAILABLE BY ARCTIC WOLF; OR (ii) TO THE EXTENT POSSIBLE, EXPORTS SUCH DATA PRIOR TO TERMINATION OF THE BETA SOLUTIONS.
1.5.4 LIMITED LIABILITY. TO THE FULL EXTENT PERMITTED BY LAW, INCLUDING THE CONSUMER PROTECTION LAWS, ARCTIC
WOLF'S ENTIRE LIABILITY IN CONNECTION WITH ANY USE OF THE BETA SOLUTIONS WHETHER IN CONTRACT, TORT OR UNDER AN Y OTHER THEORY OF LIABILITY, WILL NOT, AS TO ANY INDIVIDUAL CLAIM OR IN THE AGGREGATE, EXCEED $50. IF CUSTOMER
DOES NOT AGREE TO THE ALLOCATION OF RISK IN THIS SECTION, ITS SOLE RECOURSE IS TO IMMEDIATELY DISCONTINUE THE USE OF THE BETA SOLUTIONS.
1.5.5. Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Beta Solutions may not be supported and may be changed at any time, including in a manner that reduces functionality, (b) Beta Solutions may not be available or reliable, and (c) Beta Solutions may not be subject to the same security or audits as the Solutions.
1.6 IR JumpStart. In the event Customer's Order Form includes the license of IR JumpStart, Customer agrees that the IR JumpStart Agreement located at https://arcticwolf.com/terms/ shal l apply. If Customer is a managed service provider Authorized Partner ("MSP"), MSP, as Customer, understands that the IR JumpStart Agreement is an agreement between Arctic Wolf and MS P's end user and MSP is reselling IRJS to its end user.
2. Equipment. If the Order Form specifies that Customer will receive Equipment, then Customer is responsible for installing the Equipment at the location(s) specified by Arctic Wolf and for the implementation of appropriate data protection practices related to the protection of any Arctic Wolf Networks -Solutions Agreement
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DocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 information included on such Equipment while the Equipment is located within Customer's environment. The Equipment is a part of the Solutions and included with the subscription to the Solutions for use by Customer during the Subscription Term. If Customer attempts to install or use the Equipment at a location other than the location determined by Customer and communicated to Arctic Wolf during onboarding or at any time thereafter, the Solutions may fai l to function or may function improperly. In the event Customer installs, uses, or relocates the Equipment, Customer will promptly notify Arctic Wolf so that Equipment deployment information can be updated within Customer's account. Other than normal wear and tear, Customer is directly responsible for the replacement cost of the Equipment associated with any loss, repair, or replacement, including any other costs, damages, fees and charges to repair the Equipment. If applicable, Arctic Wolf will ship Equipment to Customer and will pay the freight costs associated with shipping the Equipment to Customer's designated locations. Customer is responsible for all additional costs and expenses associated with shipping the Equipment to its designated locations and for the return of the Equipment to Arctic Wolf. Such additional costs and expenses may be reflected on an Order Form , from time-to-time following shipment of the Equipment and will be invoiced by Arctic Wolf. Customer understands and agrees if the Equipment is shipped outside of the United States or Canada (or such other locations identified by Arctic Wolf), Customer is responsible for acting as the importer of record .
3. Professional Services. In the event Arctic Wolf and Customer agree on the delivery of Professional Services, any such Professional Services shall be specified on an Order Form and described in a statement of work which shall reference this Agreement.
4. Reservation of Rights and Ownership. Arctic Wolf owns or has the right to license the Solutions and any associated Documentation ("Arctic Wolf Technology"). Customer acknowledges and agrees that: (a) the Arctic Wolf Technology is protected by United States and international copyright, trademark , patent, trade secret and other intellectual property or proprietary rights laws; (b) Arctic Wolf retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to the Arctic Wolf Technology, excluding any rights, title, and interest in any Third Party Products (as defined in Section 10.3 below) which shall be retained by its third party licensor(s), any other deliverables, know-how, databases, developed programs, and registered or unregistered intangible property rights ; (c) there are no implied licenses and any rights not expressly granted to Customer hereunder are reserved by Arctic Wolf; (d) the Solution , excluding Professional Services, is licensed on a subscription basis, not sold, and Customer acquires no ownership or other interest (other than the license rights expressly stated herein) in or to the Arctic Wolf Technology; and (e) the Solution is offered as an on-line, hosted solution, and Customer has no right to obtain a copy of the Software.
5. Restrictions, Responsibilities, and Prohibited Use.
5.1 Restrictions. Customer agrees not to, directly or indirectly: (i) modify, translate, copy or create derivative works of the Arctic Wolf Technology except as otherwise expressly permitted under applicable U.S. and foreign copyright laws ("Copyright Laws") which may not be excluded by agreement between the parties; (ii) reverse engineer, decompile, disassemble, or otherwise seek to obtain the intellectual property contained within Solutions, except as otherwise expressly permitted under the Copyright Laws which may not be excluded by agreement between the parties; (iii) interfere with or disrupt the integrity or performance of the Solutions or the data and information contained therein or block or disrupt any use or enjoyment of the Solutions by any third party; (iv) attempt to gain unauthorized access to the Arctic Wolf Technology or related systems or networks; (v) remove or obscure any proprietary or other notice contained in the Arctic Wolf Technology, including on any reports or data printed from the Arctic Wolf Technology; (vi) unless Customer is an authorized MSP partner of Arctic Wolf, use the Solutions in connection with a service bureau, service provider or like activity whereby Customer operates or uses the Solutions for the benefit of a third party; (vii) use the Solutions to monitor or scan any environments for which Customer has not received consent; or (viii) with respect to Customer's subscription to the Managed Security Awareness Solution, include material or information that is obscene, defamatory, libelous, slanderous, that violates any person's right of publicity, privacy or personality, or otherwise results in any tort, injury, damage or harm to any person. Customer agrees to abide by the terms of the Acceptable Use Policy at https://arcticwolf.com/terms/acceptable-user-policy/, as may be updated from time-to-time in accordance with Section 13 below. If Arctic Wolf, in its reasonable discretion, determines that Customer's use of or access to the Solutions imposes an actual or imminent threat to the security or stability of Arctic Wolfs infrastructure or that Customer is abusing its use of the Solutions in contravention with the terms of this Agreement, Arctic Wolf may, in addition to any other right herein, temporarily suspend Customer's access to the Solutions, without liability except as otherwise provided by Consumer Protection Laws, until such activity is rectified. If commercially practicable, Arctic Wolf shall provide Customer with notice prior to any such suspension and shall work with Customer in good faith to reinstate the Solutions promptly.
5.2 Arctic Wolf Responsibilities. Arctic Wolf shall provide the Solutions Customer subscribes to as set forth on an Order Form in accordance with the terms of this Agreement, as further described in the Solutions Terms. The Solutions provided under this Agreement shall include any updates, upgrades, bug fixes, version upgrades or any similar changes that are made generally available to Arctic Wolfs customers free of charge from time to time during the Subscription Term.
5.3. Customer Responsibilities. Customer must identify the administrative users for its account which may include Customer's authorized (email authorization sufficient) third party service providers and agents ("Administrators"). Each Administrator will receive an administrator ID and password and will need to register with Arctic Wolf. Customer is responsible for notifying Arctic Wolf about changes to Administrators, including but not limited to termination, change of authority, and the addition of Administrators. Customer acknowledges and agrees that Administrators will be able to view all Solutions Data and other traffic and activities that occur on Customer's network and that Customer is responsible for all activities that occur under Administrator accounts. Administrator IDs are granted to individual, named persons and cannot be shared or used by more than one Administrator but may be reassigned from time-to-time to new Administrators. Notwithstanding anything contrary herein, Customer understands and agrees that transmission of Solutions Data to Arctic Wolf may be impacted by in-country technical issues and requirements. Arctic Wolf will provide reasonable assistance to Customer in such instances but is not liable if the Solutions Data cannot be transmitted outside of such country. Customer is responsible for implementing appropriate internal procedures and oversight to the extent it utilizes the configuration of workflows and processes, including but not limited to containment actions, and similar functionalities in conjunction with the Services. Arctic Wolf may recommend Customer, depending on the scope of the deployment, implement software and services to enable features of the Solutions or to permit increased visibility into Customer's environment. Customer is responsible for making such determinations in its discretion and Arctic Wolf has no liability for Customer's decisions related thereto. Customer acknowledges that any changes Customer makes to its code, infrastructure or configuration of the Solutions after initial deployment may cause the Solutions to cease working or function improperly or could prevent Arctic Wolf from delivering the Solutions and Arctic Wolf will have no responsibility for the impact Arctic Wolf Networks - Solutions Agreement
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DocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 of any such Customer changes. Customer understands that depending on the Solution deployed, a Solution may consume additional CPU and memory in Customer's environment while running in production.
5.4 Anti-corruption. In no event shall Arctic Wolf be obligated to take any action (including the shipping of any product or the provision of any service) or omit to take any action that Arctic Wolf believes in good faith would cause it to be in violation of any U.S. or foreign laws or regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act (the "FCPA '). Neither party will (i) attempt to, directly or indirectly, improperly influence the sale or purchase of products by payments or other actions contrary to law or regulation, or (ii) take any action or permit or authorize any action that would violate or cause a party to violate the FCPA, the UK Bribery Act, or other applicable anti-corruption laws or regulations. Neither party will, for the purpose of influencing any act or decision to obtain or retain business or direct business to any person, pay, offer or promise to pay, or authorize the payment of, directly or indirectly, any money or anything of value to or for the use or benefit of any of the following: (a) any government official (including any person holding an executive, legislative, judicial or administrative office, whether elected or appointed, or any representative of any public international organization, or any person acting in any official capacity for or on behalf of any government, state-owned business or public organization); (b) any political party, official thereof, or candidate for political office; or (c) any other person if a party or any respective partner, officer, director, employee, agent, representative or shareholder of such party knows or has reason to suspect or know that any. part of such money or thing of value will be offered, given or promised, directly or indirectly, to any of the aboveidentified persons or organizations. Each party acknowledges and agrees that none of its officers, directors, employees, agents or representatives is a government official or employee or an official or employee of any department or instrumentality of any government, nor is any of them an officer of a political party or candidate for political office, who will share directly or indirectly any part of the sums that may be paid pursuant to performance of this Agreement; and each party agrees to immediately notify the other party should the foregoing change during the term of this Agreement. Each party represents and warrants that neither this Agreement nor the performance of or exercise of rights under this Agreement is restricted by, in conflict with, requires registration or approval or tax withholding under, or will require any termination or expiration, compensation, or any compulsory licensing under, any applicable law or regulation of any country or other governmental entity, and each party wi ll not make any claim to the contrary (each party is relying on this representation and warranty, among other provisions of this Agreement, in entering this Agreement and would not enter this Agreement in its absence).
5.5 Trade Controls. Customer understands that the Solutions may be subject to the export control, economic sanctions, customs, import, and anti-boycott laws , regulations , and orders promulgated or enforced by Canada, the United States, Customer's jurisdictions of incorporation and operations, and any other country or governmental body having jurisdiction over the parties to this Agreement ("Trade Controls"). Customer shall ensure that the Solutions are not re-exported, provided or transferred to any person or entity listed on any restricted or prohibited persons list issued by Canada, the United States, Germany, or any governmental authority of any applicable jurisdiction, including but not limited to the Bureau of Industry and Security's Denied Persons, Entity, or Unverified List or the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, or Sectoral Sanctions Identifications List (collectively, the "Restricted Persons Lists"). Customer represents and warrants that it and its shareholders, members, partners, or other owners are not listed on, or owned 50% or more, collectively or individually, by anyone on a Restricted Persons List. Customer shall not use the Solutions (a) for a military application, wherever located; or (b) with knowledge or reason to know that the Solutions will be used for nuclear, chemical, or biological weapons proliferation or (c) for any other end use or by any end user otherwise prohibited by applicable Trade Controls. Upon request by Arctic Wolf, Customer will complete and provide an end use certificate in the form requested by Arctic Wolf. Arctic Wolf may suspend and/or cancel the export, delivery, and or servicing of the Solutions, if: (i) Arctic Wolf has not received requested end-user certifications; (ii) Arctic Wolf has not received any government approvals required to comply with Trade Controls, or (iii) Arctic Wolf believes that such activity may violate any Trade Controls. If the Solutions are resold or transferred in violation of any Trade Controls or the provision of this Agreement, Arctic Wolf shall not be obligated to provide any warranty service or technical support for such Items.
5.6 Public Entity Customers. If Customer is a public entity, Customer acknowledges and agrees this Agreement is the sole set of terms governing the delivery of the Solutions to Customer and for the avoidance of doubt, terms related to acceptance related to any services or work product shall not apply. The terms of any request for proposal(s), request for information, invitation to qualify, purchasing agreement or cooperative contract, or similar agreement Customer is using to purchase the Solutions (as defined below) from an Authorized Partner do not apply to Arctic Wolf. Further, Customer understands, and hereby consents, that Solutions Data may be accessed and processed by Arctic Wolf and its non-US Affiliates and their non-US citizen employees and Arctic Wolfs authorized third-party service providers in the United States, Europe, or other locations around the world.
Customer represents that in purchasing the Solutions, (i) Customer is not relying on Arctic Wolf for performance of a federal prime contract or subcontract and (ii) Customer is not receiving federal funds to purchase the Solutions. If Customer does intend to rely on Arctic Wolf Solutions to fulfill its obligations under a federal prime contract or subcontract or utilize federal funds to purchase the Solutions, Customer agrees to provide Arctic Wolf advance written notice of that intention, and Arctic Wolf shall have the option to terminate this Agreement.
Technology is a "commercial item", "commercial computer software" and "commercial computer software documentation," pursuant to DFARS Section 227.7202 and FAR Sections 12.211-12.212, as applicable. All Arctic Wolf Technology is and was developed solely at private expense and the use of Arctic Wolf Technology by the United States Government are governed solely by this Agreement and are prohibited except to the extent expressly permitted by this Agreement.
Customer represents it has the requisite authority to enter into and perform under this Agreement.
6. Fees, Payment, Taxes, and Audit.
6.1 Fees, Payment, & Taxes. Pricing for the Solutions will be specified on an Order Form. All fees are payable in the currency set forth in the Order Form and are non-cancelable and non-refundable EXCEPT AS REQUIRED BY CONSUMER PROTECTION LAWS, ARCTIC WOLF
IS NOT OBLIGATED TO REFUND ANY FEES OR OTHER PAYMENTS ALREADY PAID, AND ANY CANCELLATION BY CUSTOMER WILL TAKE PLACE AT THE END OF THE APPLICABLE SUBSCRIPTION TERM , UNLESS ARCTIC WOLF OTHERWISE AGREES IN WRITING.
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OocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 Delinquent amounts shall bear interest at a rate equal to the lesser of one and one-half percent (1.5%) per month (eighteen percent (1 8%) per year) or the maximum rate permitted by law, whichever is less. If Customer fails to make any payments due under this Agreement or an applicable Order Form, Arctic Wolf shall notify Customer of such nonpayment. If a payment that is due remains unpaid for ten (10) days after Arctic Wolf provides Cu stomer with notice of such nonpayment, Arctic Wolf may cease providing the Solutions without any liability to Arctic Wolf. The amounts payable to Arctic Wolf are exclusive of any sales tax, use tax, excise tax, VAT, GST, HST, or similar taxes ("Indirect Taxes"). Customer is solely responsible for payment of all Indirect Taxes. If Customer is required to pay any Indirect Taxes, Customer shall pay such Indirect Taxes with no reduction or offset in the amounts payable to Arctic Wolf hereunder and Customer will pay and bear such additional amount as shall be necessary such that Arctic Wolf receives the full amount of the payment required as if no such reduction or offset were required. If Arctic Wolf has the legal obligation to pay or collect Indirect Taxes for which Customer is responsible, Customer authorizes Arctic Wolf to charge Customer for such amount. If Customer believes that Arctic Wolf has billed Customer incorrectly, Customer must contact Arctic Wolf no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared to receive an adjustment or credit. Inquiries should be directed to Arctic Wolfs customer support department.
6.2 Audit. During the term of this Agreement and for one year thereafter, Customer shall provide Arctic Wolf, or its designated representative, promptly upon request with appropriate records requested by Arctic Wolf to verify Customer's compliance with the Agreement, including specifically its license counts as set forth on an Order Form. Arctic Wolf, at its option , may require that an executive officer of Customer certify in writing to Customer's compliance with this Agreement and disclose the scope of use of the Solutions by Customer. If, because of such audit, Arctic Wolf determines that Customer has exceeded the number of licenses subscribed to by Customer on an Order Form, Arctic Wolf will notify Customer of the number of additional licenses, along with the associated Subscription Fees prorated through the end of the then-current Subscription Term, and Customer will remit payment for such Subscription Fees in accordance with this Section 6.
7. Confidentiality. Either party (as a "Discloser'') may disclose confidential and proprietary information, orally or in writing ("Confidential Information") to the other party (as a "Recipient''). Confidential Information (a) shall be marked with a restrictive legend of the Discloser or, (b) if orally or visually disclosed to Recipient by Discloser, or disclosed in writing without an appropriate letter, proprietary stamp or legend, shall be confidential if it would be apparent to a reasonable person that such information is confidential or proprietary. Confidential Information of Arctic Wolf includes the following: any pricing, trade secrets, know-how, inventions (whether or not patentable), techniques, ideas, or processes related to the Arctic Wolf Technology; the design and architecture of the Arctic Wolf Technology; the computer code, internal documentation, and design and functional specifications of the Arctic Wolf Technology; Arctic Wolfs security and privacy due diligence material such as SOC2 reports , security and privacy questionnaire responses & memos; and any intellectual property and know-how included in the problem reports, analysis, and performance information related to the Arctic Wolf Technology. Confidential Information of Customer may include the following:
(i) If the MA or MA+ Solution is deployed: User setup details, including email, work title, and name; Solution metrics related to such Users, including your Users' learning status, training scores, and Phishing results associated with such Users' use of the Solution (collectively "Learner Data"); Customer created and owned content, if any; and (ii) If MOR and/or MR Solutions are deployed: Solutions Data (as defined in Section 8.1 below).
Each party agrees to hold the other party's Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized by the Discloser to receive such Confidential Information, and not to use such Confidential Information for any purpose except as expressly permitted hereunder and as described in the Privacy Notice. Each party agrees to take commercially reasonable steps to protect the other party's Confidential Information and to ensure that such Confidential Information is not disclosed , distributed or used in violation of the provisions of this Agreement. The Recipient may disclose Confidential Information only: (a) with the Discloser's prior written consent; or (b) to those employees, officers, directors, agents, consultants, third party service providers, and advisors with a clear and well-defined "need to know" purpose who are informed of and bound by confidentiality obligations no less restrictive than those set forth in this Section 7.
Notwithstanding the foregoing , the Recipient may disclose Confidential Information to the extent required by law; however, the Recipient will give, to the extent legally permissible and reasonably practical, the Discloser prompt notice to allow the Discloser a reasonable opportunity to obtain a protective order and such Confidential Information disclosed to the extent required by law shall otherwise remain confidential and subject to the protections and obligations of this Agreement. For the avoidance of doubt, Arctic Wolf may share Customer's name with Customer's services providers to assist Customer in the resolution of technical issues pertaining to the Solutions. To the extent legally required, Arctic Wolf may report any violations of law pertaining to Customer's use of the Solutions . . The Discloser agrees that the foregoing confidentiality obligations shall not apply with respect to any information that the Recipient can document is: (i) rightfully in its possession or known to it prior to receipt from the Discloser without an obligation of confidentiality; (ii) or has become public knowledge through no fault of the Recipient; (iii) rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation; or (iv) independently developed by employees of the Recipient who had no access to Discloser's Confidential Information. Upon expiration or termination of this Agreement for any reason, and except as otherwise provided in Section 14 below, each party shall promptly destroy all copies of the other party's Confidential Information and copies, notes or other derivative material relating to the Confidential Information. Notwithstanding the foregoing , and subject to the Privacy Notice, Arctic Wolf may retain Point of Contact Information which may include first name, last name, corporate email address, phone number, job title, address, and organization hierarchy following termination of this Agreement for its internal business purposes. If a request for disclosure of any information designated as "Confidential" by Arctic Wolf is made under the California Public Records Act, Customer shall timely notify Arctic Wolf in writing of the request to permit Arctic Wolf at its discretion and sole cost to file a reverse-Public Records Act action . If Arctic Wolf decides to file a reversePublic Records Act action, it shall inform Customer in writing of this intention within 10 days of the date of the request for disclosure of the specific Confidential documents that will be the subject of the action, and the date by which it shall file the action. Customer shall withhold any such Confidential documents identified by Arctic Wolf until the date identified in writing by Arctic Wolf, and upon the filing of Arctic Wolf's action shall continue to withhold those Confidential documents until a final decision is made by the Court with respect to disclosure, or the action is abandoned .
If Arctic Wolf does not timely inform Customer of its intention to file a reverse-Public Records Act action, does not file the reverse-Public Records Act action by the date indicated in its written notice to Customer, or abandons the reverse-Public Records Act action prior to judgment, Customer shall be free to disclose the Confidential documents at issue in accordance with its obligations under the Act, and shall be held harmless from any claims from Arctic Wolf regarding said disclosure. If a legal action is filed against Customer seeking to compel disclosure of any information that Arctic Wolf has requested remain confidential, Customer shall give prompt notice of the filing of such action to Arctic Wolf and Arctic Wolf shall defend and indemnify Customer from all costs and expenses of such defense, including reasonable attorneys' fees of Customer or attorneys' fees awarded by a court arising out of such action.
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8. Solutions Data.
8.1 Solutions Data. "Solutions Data" means, depending on the Solution deployed, the operational system log data and any other information provided by Customer in furtherance of its use of the Solutions and which Customer may elect to submit to Arctic Wolf through the Solutions, including, but not limited to operational values, event logs, and network data such as flow, HTTPS, TLS, DNS metadata , cursory inventory data, operating systems and versions, users and groups from Active Directory, system level inventory, event data, and network vu lnerabi lity data, but excluding Threat Intelligence Data (as defined below). As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Solutions Data (excluding any Arctic Wolf Technology used with the Solutions Data). Customer hereby grants Arctic Wolf, during the term of the Agreement, a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of the Solutions Data solely to the extent necessary to provide the Solutions to Customer. The location of the storage of raw Solutions Data within Arctic Wolfs third party service providers' data centers will be as set forth in the Solutions Terms. "Threat Intelligence Data" means any malware, spyware, virus, worm , trojan , or other potentially malicious or harmful code or files , URLs, DNS data, public IP addresses, network telemetry, commands, processes or techniques, tradecraft used by threat actors, metadata, or other information or data, in each case that is potentially related to unauthorized third parties associated therewith and that: (i) Customer provides to Arctic Wolf in connection with this Agreement, or (ii) is collected or discovered during the course of Arctic Wolf providing Solutions, excluding any such information or data that identifies Customer or to the extent that it includes Personal Data (as defined below) of the data subjects of Customer (but including personal information of threat actors).
8.2 Personal Information. Confidential Information may include information that identifies, relates to, describes, is reasonably capable of being associated with or linked to a particular individual, whether directly or indirectly ("Personal Information"). Customer is responsible for the lawfulness of any such Personal Information and the receipt, use, and processing of it under the Agreement. Customer represents and warrants that, where it provides Personal Information to Arctic Wolf or requests Arctic Wolf col lect or process such information, it (1) has complied with any applicable laws relating to the collection or provision of such information, (2) possesses any consents, authorizations, rights and authority, and has given all required notices to individual data subjects as are required to transfer or permit Arctic Wolf to collect, receive, or access any Personal Information for the Solutions, and (3) to the extent required by applicable law, informed the individuals of the possibility of Arctic Wolf processing their Personal Information on Customer's behalf and in accordance with its instructions.
8.3 European Union and United Kingdom General Data Protection Regulation. If and to the extent Customer submits to Arctic Wolf personal data (as that term is defined under the General Data Protection Regulation ("GDPR")) of individuals located in the European Economic Area or United Kingdom , the Arctic Wolf Data Processing Agreement available at https://arcticwolf.com/terms/dpa/ 1 as may be updated by Arctic Wolf from time-to-time in accordan ce with its terms (the "DPA"), may be executed by Customer and upon execution and return to Arctic Wolf in accordance with its terms will be incorporated into this Agreement. It is Customer's sole responsibility to notify Arctic Wolf of requests from data subjects related to the modification, deletion, restriction and/or objection of personal data. Customer represents and warrants that any processing of personal data in accordance with its instructions is lawful.
8.4 California Consumer Privacy Act. The parties acknowledge and agree that Arctic Wolf is a service provider for the purposes of the California Consumer Privacy Act, as amended by the California Privacy Rights Act ("CCPA") and may receive personal information (as defined by the CCPA) from Customer pursuant to this Agreement for a business purpose. The parties agree to comply at all times with the applicable provisions of the CCPA in respect to the col lection, transmission, and processing of all personal information (as defined by the CCPA) exchanged or shared pursuant to the Agreement. Arctic Wolf shall not (i) sell any such personal information; (ii) retain , use or disclose any personal information provided by Customer pursuant to this Agreement except as necessary for the specific purpose of performing the Solutions for Customer pursuant to this Agreement or as permitted by the CCPA; (iii) retain, use, or disclose such personal information for a commercial purpose other than providing the Solutions unless otherwise explicitly permitted under the Agreement; or (iv) retain, use, or disclose such personal information outside of the direct business relationship between Customer and Arctic Wolf unless otherwise permitted under the Agreement. The terms "personal information," "service provider," "sale," and "sell" are as defined in Section 1798.140 of the CCPA. Arctic Wolf certifies that it understands the restrictions of this Section 8.4. It is Customer's sole responsibility to notify Arctic Wolf of any requests from consumers (as defined in the CCPA) seeking to exercise rights afforded in the CCPA with regard to personal information received or processed in connection with the Solutions. Arctic Wolf agrees to provide reasonable cooperation to Customer in connection with such requests.
8.5 Canadian Privacy Laws. If and to the extent Customer submits to Arctic Wolf personal information (as that term is defined under applicable Canadian privacy laws, being all applicable federal, and provincial laws and regulations relating to the processing, protection or privacy of personal information ("Privacy Laws"), of individuals located in Canada , Customer agrees that it is solely responsible for and shall obtain from all such individuals, all required consents and/or provide all required notifications, regarding the collection, use, disclosure, and processing of their personal information by Arctic Wolf/Arctic Wolfs subcontractors/third party service providers (which may be located outside of Canada), and/or the transfer by Customer of such individual's personal information to Arctic Wolf/Arctic Wolfs subcontractors/third party service providers (which may be located outside of Canada). Upon request of Customer, Arctic Wolf will inform Customers of the locations to which the personal information is transferred and processed by Arctic Wolf and/or its subcontractors/third party service providers.
Customer retains control of the personal information and remains solely responsible for its compliance with Privacy Laws and for the processing instructions it gives to Arctic Wolf. The parties agree that this Agreement, together with Customer's use of the Solution in accordance with this Agreement, constitutes Customer's instructions to Arctic Wolf in relation to the processing of such personal information. Subject to Section 8.1 of this Agreement, Arctic Wolf will only process the personal information to the extent, and in such a manner, as is necessary for the performance of the Solutions. Arctic Wolf will reasonably assist Customer with meeting the Customer's compliance obligations under applicable Privacy Laws , considering the nature of Arctic Wolf's processing and the information available to Arctic Wolf.
Arctic Wolf shall :
• Comply with its obligations as a third party service provider/mandatory under applicable Privacy Laws, including by implementing appropriate technical, physical and organizational measures to safeguard the personal information; Arctic Wolf Networks - Solutions Agreement
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DocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 • Periodically conduct audits of its information security controls for facilities and systems used to deliver the Solutions and make relevant audit reports available to Customer for review. The Customer will treat such audit reports as Arctic Wolfs Confidential Information; • Within seventy-two (72) hours of discovery notify Customer of any unauthorized or unlawful access to or processing of the personal information ;
• Limit access to those employees who require the personal information access to meet Arctic Wolf's obligations under this Agreement and ensure that all employees are informed of th e personal information's confidential nature; • Notify Customer if it receives any complaint, notice, or communication that directly or indirectly relates to the personal information processing or to either party's compliance with Privacy Laws, and provide its full co-operation and assistance in responding to such complaint, notice or communication; and
• Upon Customer's request, provide the Customer a copy of or access to all or part of the Customer's personal information in its possession or control in the format reasonably agreed to by the parties.
8.6 Australian Privacy Laws. If and to the extent Customer submits to Arctic Wolf personal information (as that term is defined in the Australian Privacy Act 1988 (Cth)) on your behalf, as agent for you, Arctic Wolf will only handle your personal information for the purpose of performing the Solutions, in accordance with the Privacy Notice or as required by applicable law, and ensuring you have access to your Solutions Data in accordance with this Agreement. Customer will maintain effective control of how Solutions Data is handled by retaining the right to access, changing and retrieving Solutions Data, limiting others' use of Solutions Data and specifying security measures that are used in relation to Solutions Data as set forth in this Agreement, including the Privacy Notice.
8.7 South African Privacy Laws. If and to the extent Custom er submits to Arctic Wolf personal information (as that term is defined in the Protection of Personal Information Act, 4 of 201 3) of individuals located in South Africa, Customer agrees that it is solely responsible for and shall obtain from all such individuals, all required consents and/or provide all required notifications, regarding the collection, use, disclosure, and processing of their personal information by Arctic Wolf/Arctic Wolfs subcontractors/third party service providers (which may be located outside of South Africa, and/or the transfer by Customer of such individual's personal information to Arctic Wolf/Arctic Wolf's subcontractors/third party service providers (which may be located outside of South Africa). Upon request of Customer, Arctic Wolf will inform Customers of the locations to which the personal information is transferred and processed by Arctic Wolf and/or its subcontractors/third party service providers. Arctic Wolf will only handle personal information for the purpose of performing the Solutions and ensuring Customer has access to its Solutions Data in accordance with this Agreement. Customer will maintain effective control of how Solutions Data is handled by retaining the right to access, changing , and retrieving Solutions Data, limiting others' use of Solutions Data. Arctic Wolf shall take appropriate, reasonable technical and organizational security measures to prevent the loss of, damage to or unauthorized destruction of personal inform ation , and the unlawful access to or processing of personal information.
9. Indemnity.
9.1 Arctic Wolf's Indemnity. Subject to Section 9.3, Arctic Wolf wi ll defend and indemnify Customer from any unaffiliated third party claim or action (i) to the extent based on the allegation that the Solutions infringe any intellectual property right (patents, utility models, design rights , copyrights and trademarks or any other intellectual property right) having effect in the United States, Canada, Australia , United Kingdom, and the European Union or (i i) resulting from Arctic Wolf's gross negligence or willful misconduct. Arctic Wolf will pay any settlements that Arctic Wolf agrees to in a writing signed by an authorized officer of Arctic Wolf or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Solutions, or portions or components thereof, that are: (a) not provided by Arctic Wolf; (b} combined with other products, processes or materials that are not reasonably contemplated by the Documentation where the alleged infringement relates to such combination; (c) modified other than with Arctic Wolfs express consent; (d) used after Arctic Wolf's notice to Customer of such activity's alleged or actual infringement; or (e) not used by Customer in strict accordance with this Agreement or the published Documentation. The indemnification obligations set forth in this Section 9.1 are Arctic Wolf s sole and exclusive obligations, and Customer's sole and exclusive remedies, with respect to infringement or misappropriation of third-party intellectual property rights of any kind.
9.2 Customer Indemnity. Subject to Section 9.3, Customer agrees to defend and indemnify Arctic Wolf from any third-party claim or action brought against Arctic Wolf to the extent based on Customer's alleged breach of Sections 5.3 or 8.2. Customer agrees to pay any settlements that Customer agrees to in a writing signed by an authorized officer of Customer or final judgments awarded to the third party claimant by a court of competent jurisdiction.
9.3 Procedures. Each party's indemnification obligations are conditioned on the indemnified party: (a) providing the indemnifying party with prompt written notice of any claim, provided that the failure to provide such notice shall only limit the indemnifying party's obligation to indemnify to the extent that the failure prejudices the indemnifying party in its defense of the claim; (b) granting the indemnifying party the sole control of the defense or settlement of the claim ; and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party's expense. Notwithstanding the foregoing, the indemnifying party (i) may not make an admission of fault on behalf of the other party without written consent, (ii) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed , and (iii) the other party may join in the defense with its own counsel at its own expense.
9.4 Options. If Customer's use of the Solutions has become, or in Arctic Wolfs opinion is likely to become, the subject of any claim of infringement, Arctic Wolf may at its option and expense: (a) procure for Customer the right to continue using and receiving the Solutions as set forth hereunder; (b} replace or modify the Solutions to make them non-infringing; (c) substitute an equivalent for the Solutions; or (d) if Arctic Wolf, in its sole discretion, determines that options (a)-(c) are not reasonably practicable, terminate this Agreement and refund any pre-paid unused Fees as of the effective date of termination.
10. Warranty and Warranty Disclaimer.
10.1 Solutions Warranty. ARCTIC WOLF WARRANTS THAT DURING THE SUBSCRIPTION TERM AND PROVIDED THAT CUSTOMER
IS NOT IN BREACH OF THIS AGREEMENT OR AS OTHERWISE PROHIBITED BY CONSUMER PROTECTION LAWS INCLUDING ANY CUSTOMER RIGHTS UNDER SUCH CONSUMER PROTECTION LAWS THAT: (I) THE SOLUTIONS PROVIDED UNDER THIS AGREEMENT DO NOT INFRINGE OR MISAPPROPRIATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; (II) THE SOLUTIONS SHALL Arctic Wolf Networks -Solutions Agreement
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DocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 SUBSTANTIALLY PERFORM AS DESCRIBED IN THE DOCUMENTATION; AND (111) IT WILL COMPLY WITH ALL FOREIGN, PROVINCIAL,
FEDERAL, STATE AND LOCAL STATUTES, LAWS, ORDERS, RULES, REGULATIONS AND REQUIREMENTS, INCLUDING THOSE OF ANY
GOVERNMENTAL (INCLUDING ANY REGULATORY OR QUASI-REGULATORY) AGENCY APPLICABLE TO ARCTIC WOLF AS IT PERTAINS TO ITS OBLIGATIONS AND THE DATA REQUIRED FOR THE PERFORMANCE OF THE SOLUTIONS DESCRIBED HEREIN. IN THE EVENT OF ANY BREACH OF THIS SECTION 10.1 , ARCTIC WOLF SHALL, AS ITS SOLE LIABILITY AND CUSTOMER'S SOLE REMEDY (OTHER THAN ARCTIC WOLF'S INDEMNIFICATION OBLIGATIONS IN SECTION 9.1 ABOVE, OR OTHERWISE PROHIBITED BY CONSUMER PROTECTION LAWS AND SECTION 11.2 OF THIS AGREEMENT), REPAIR OR REPLACE THE SOLUTIONS THAT ARE
SUBJECT TO THE WARRANTY CLAIM AT NO COST TO CUSTOMER OR IF ARCTIC WOLF IS UNABLE TO REPAIR OR REPLACE, THEN ARCTIC WOLF WILL REFUND ANY PRE-PAID FEES FOR THE SOLUTIONS, OR PARTS THEREOF, SUBJECT TO THE WARRANTY CLAIM .
EXCEPT FOR THE WARRANTIES DESCRIBED IN THIS SECTION, THE SOLUTIONS ARE PROVIDED WITHOUT WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE. CUSTOMER ACKNOWLEDGES THAT THE SOLUTIONS ARE PROVIDED "AS IS" AND FURTHER ACKNOWLEDGES THAT ARCTIC WOLF DOES NOT WARRANT: (A) THE OPERATION OF THE SOLUTIONS WILL BE UNINTERRUPTED, OR ERROR FREE; AND (B) THE SOLUTIONS ARE NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE. CUSTOMER IS RESPONSIBLE AND ARCTIC WOLF SHALL HAVE NO RESPONSIBILITY FOR
DETERMINING THAT THE USE OF THE SOLUTIONS COMPLIES WITH APPLICABLE LAWS IN THE JURISDICTION(S) IN WHICH CUSTOMER MAY DEPLOY AND USE THE SOLUTIONS.
10.2 No Guarantee. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT ARCTIC WOLF DOES NOT GUARANTEE OR
WARRANT THAT IT WILL FIND, LOCATE, OR DISCOVER ALL OF CUSTOMER'S SYSTEM THREATS, VULNERABILITIES, MALWARE, AND
MALICIOUS SOFTWARE, OR THAT ALL SUCH SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE CAN OR WILL BE CONTAINED OR UNCONTAINED IN THE DELIVERY OF THE SOLUTIONS. CUSTOMER ACKNOWLEDGES THAT CERTAIN
FEATURES AND ACTIVITIES PERFORMED BY ARCTIC WOLF AND MORE FULLY DESCRIBED IN THE SOLUTIONS TERMS COULD
POSSIBLY RESULT IN INTERRUPTIONS OR DEGRADATION TO CUSTOM ER'S SYSTEMS AND ENVIRONMENT AND ACCEPTS THOSE RISKS AND CONSEQUENCES. CUSTOMER ASSUMES ALL RISKS IN USING THIRD PARTY SYSTEMS OR SERVICES IN CONNECTION WITH THE DELIVERY OF THE SOLUTIONS.
10.3 Open Source Warranty. The Software may include Open Source Software. To the extent included in the Software, Open Source Software is governed solely by the applicable open source licensing terms , if any, and is provided "AS IS", and Arctic Wolf hereby disclaims all copyright interest in such Open Source Software. Arctic Wolf provides no warranty specifically related to any Open Source Software or any applicable Open Source Software licensing terms. Any fees paid by Customer to Arctic Wolf are for Arctic Wolf's proprietary Software only, and not for any Open Source Software components of the Software. Any license associated with an Open Source Software component applies only to that component and not to Arctic Wolf's proprietary Software or any other third-party licensed software. The foregoing language is not intended to limit Arctic Wolf's warranty obligation for the Solutions set forth in Section 10.1 . "Open Source Software" means software with its source code made available pursuant to a license by which, at a minimum, the copyright holder provides anyone the rights to study, change, and/or distribute the software to anyone and for any purpose.
10.4 Third Party Product. Third Party Product (as defined in this Section 10.4) may carry a limited warranty from the third-party publisher, provider, or original manufacturer of such Third Party Products. To the extent required or allowed, Arctic Wolf will pass through to Customer or directly manage for the benefit of Customer's use of the Third Party Products as part of the Solutions (such decision to be made in Arctic Wolf's discretion), the manufacturer warranties related to such Third Party Products. "Third Party Product" means any non-Arctic Wolf branded products and services (including Equipment, and any operating system software included therewith} and non-Arctic Wolf-licensed software products, including Open Source Software.
10.5 Customer Warranties. Customer represents and warrants that it shall: (i) be responsible for ensuring the security and confidentiality of all Administrator IDs and passwords; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Solutions; (iii) notify Arctic Wolf promptly upon discovery of any unauthorized use of the Solutions or any breach, or attempted breach, of security of the Solutions; (iv) not violate any foreign, provincial, federal, state and local statutes, laws, orders, rules, regulations and requirements applicable to Customer's performance of its obligations herein, including those of any governmental (including any regulatory or quasi-regulatory) agency, Trade Control laws, and regulations and the U.S. Foreign Corrupt Practices Act (the "FCPA'); (v) not use the Solutions and transfer any Solutions Data to Arctic Wolf for any fraudulent purposes; and (vi) implement safeguards within Customer's environment to protect the Solutions, including specifically, the Equipment, from the introduction, whether intentional or unintentional, of: (1) any virus or other code, program, or sub-program that damages or interferes with the operation of the Equipment or halts, disables, or interferes with the operation of the Solutions; or (2) any device, method, or token whose knowing or intended purpose is to permit any person to circumvent the normal security of the Solutions. Customer authorizes Arctic Wolf to perform Services (and all such tasks and tests reasonably contemplated by or reasonably necessary to perform the Services) on network resources with the internet protocol addresses or other designated identifiers identified by Customer. Customer represents that, if Customer does not own such network resources, it will have obtained consent and authorization from the applicable third party to permit Arctic Wolf to provide the Services on such third party's network resources.
11. Limitation of Liability.
11.1 TO THE FULL EXTENT PERMITTED BY LAW AND SUBJECT TO SECTION 11 .2 BELOW, FOR ANY CAUSE RELATED TO OR
ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY} OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, ARCTIC WOLF WILL IN NO EVENT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR: (A) DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SOLUTIONS,
LOST REVENUES OR PROFITS, LOSS OF SOLUTIONS, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING
FROM SYSTEM FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT
INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION, OR BREACHES IN CUSTOMER'S SYSTEM SECURITY; OR (8) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; OR (C) ANY AMOUNTS THAT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SOLUTIONS THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY Arctic Wolf Networks - Solutions Agreement
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DocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 PRIOR TO THE EVENT WH ICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT ARCTIC WOLF
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITIES FOR EACH PARTY SET
FORTH IN THIS AGREEMENT ARE REASONABLE AND THEY WOULD NOT HAVE ENTERED INTO THE AGREEMENT WITHOUT SUCH LI MITATIONS. THE FOREGOING LIMITATIONS OF LIABILITY IN THIS SECTION 11, WITH RESPECT TO ARCTIC WOLF AUSTRALIAN CUSTOM ERS, ARE SUBJECT TO THE COMPETITION AND CONSUMER ACT 2010 (CTH) SCH 2 AND SECTION 11 .2 OF THIS AGREEMENT. THIS SECTION 11 .1 SHALL NOT APPLY TO ARCTIC WOLF'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION
9. 1 ABOVE OR CLAIMS RESULTING FROM ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11.2 [INTENTIONALLY OM ITTED)
12. Term and Renewal. This Agreement shall be in effect for the Subscription Term specified in the Order Form. The Subscription Term for the Solutions will automatically terminate at the end of the Subscription Term unless the parties agree to renew the Subscription on or before the expiration of the then-current Subscription Term.
13. Updates. Arctic Wolf reserves the right to modify this Agreement, the Terms, and the Documentation in Arctic Wolf's sole discretion provided that changes to the Solutions Terms shall not materially decrease the Solutions features and functionalities that Customer has subscribed to during th e then-current Subscription Term. Should Arctic Wolf make any modifications to the Agreement, the Terms, or Documentation, Arctic Wolf wi ll post the amended terms on the applicable URL links and will update the "Last Updated Date" within such documents and notify Customer via email, the Customer newsletter or such other written communication method implemented by Arctic Wolf from time-to-time. Customer may notify Arctic Wolf within 30 days after the effective date of the change of its rejection of such change. If Customer notifies Arctic Wolf of its rejection during such thirty (30) day period, then Customer will remain governed by the terms in effect immediately prior to the change until the end of Customer's then-current Subscription Term. However, any subsequent renewal of the Subscription Term will be renewed under the then-current terms, unless otherwise agreed in writing by the parties.
14. Termination. Either party may terminate this Agreement for cause if the other party commits a material breach of this Agreement, provided that such terminating party has given the other party ten (10) days advance notice to try and remediate the breach. Upon termination. Customer agrees to cease all use of the Arctic Wolf Technology, installed or otherwise, and permanently erase or destroy all copies of any Arctic Wolf Technology, including all Content and virtual Equipment, that are in its possession or under its control and promptly remove and return all physical Equipment to Arctic Wolf. Except as otherwise required by law, Arctic Wolf will remove, delete, or otherwise destroy all copies of Confidential Information in its possession upon the earlier of (i) the return of the Equipment, if applicable, to Arctic Wolf, or (i i) one hundred-twenty (120) days following termination. Notwithstanding anything contrary in th is Agreement, should Customer fa il to return any Equipment within ninety (90) days following discontinuation of use of the Equipment or termination or expiration of this Agreement, Customer will be liable for the replacement cost of the Equipment, which shall be due and owing upon receipt of the invoice from Arctic Wolf, and Customer shall be liable for any breach of the Confidential Information and Arctic Wolf Technology contained within the unreturn ed Equipment. Sections 6 (only as to amounts due and owing) through 13, 14, and 15 wi ll survive the non-renewal or termination of this Agreement.
15. Miscellaneous.
15.1 Except as otherwise provided herein, all notices, requests , consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) on the next business day after the date sent, if sent for overnight delivery by a generally recognized international courier (e.g ., FedEx, UPS, OHL, etc.) (receipt requested); or (c) on the date sent by e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Such communications must be sent to the respective parties at the addresses set forth on the signature page hereof (or at such other address for a party as shall be specified in a notice given in accordance with this Section 15). For contractual purposes, Customer (1) consents to receive communications in an electronic form via the email address it provides herein or via the Customer Portal; and (2) agrees that all agreements, notices, disclosures, and other communications that Arctic Wolf provides electronically satisfies any legal requirement that those communications would satisfy if they were on paper. This Section does not affect Customer's non-waivable rights.
15.2 Notwithstanding any other terms to the contrary contained herein , Customer grants Arctic Wolf the rig ht to use Customer's name or logo in customer lists, marketing materials, and verbal discussions with prospective customers to communicate that Customer uses the Solutions. If Arctic Wolf intends to disclose information about Customer's purchase(s) (such as dollar amount of sale or project objectives) in conjunction with the use of Customer's name or logo, Arctic Wolf will obtain Customer's prior written or email approval.
15.3 The parties to this Agreement are independent contractors. Neither party has the authority to bind the other party without the express written authorization of the other party. Nothing herein may be construed to create an employer-employee, franchisor-franchisee, agency, partnership, or joint venture relationship between the parties. Arctic Wolf shall be primarily liable for the obligations of its Affiliates and any subcontractors used in the delivery of the Solutions.
15.4 This Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Customer shall not be entitled to assign, subcontract, delegate or otherwise transfer any of its rights and/or duties ari sing out of this Agreement and/or parts thereof to third parties, voluntarily or involuntarily, including by change of control, operation of law or any other manner, without Arctic Wolf's express prior written consent. Any purported assignment, subcontract, delegation or other transfer in violation of the foregoing shall be null and void. No such assignment, subcontract, delegation or other transfer shall relieve the assigning party of any of its obligations hereunder.
15.5 The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended. This Agreement shall be governed by the laws of the State of Californ ia without regard to th e conflicts of law provisions thereof. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in Santa Clara County, California in English and in accordance with the JAMS International Arbitration Rules then in effect. Any judgment on the award rendered by the Arctic Wolf Networks - Solutions Agreement
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DocuSign Envelope ID: DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s). In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees.
15.6 Each party acknowledges and agrees that any dispute or claim that may arise out of or relate to this Agreement is likely to involve complicated and difficult issues and , therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. .
15. 7 No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
15.8 If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in fu ll force and effect to the extent not held invalid or unenforceable. The parties agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purpose of such void or unenforceable provision. Arctic Wolf does not accept, expressly or impliedly, and rejects and deems deleted any additional or different terms or conditions that Customer presents, including, but not limited to, any terms or conditions contained Customer's purchase order, or other such document, or established by trade usage or prior course of dealing.
15.9 This Agreement (including the exhibits hereto, if any, and any BAA (as defined in Section 15.10 below)) constitutes the parties' entire agreement by and between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreement or understanding by and among the parties with respect to such subject matter. Except as otherwise provided herein , this Agreement may be amended , modified or supplemented only by an agreement in writing signed by each party.
15.10 In the event that Arctic Wolf receives personal healthcare information in the delivery of the Solutions, the parties agree to comply with the Business Associate Addendum ("BAA") located at https://arcticwolf.com/terms/business-associate-addendum/ or such other equivalent agreemenUaddendum as required under applicable health information/privacy laws. In the event the parties have entered into a BAA or equivalent agreement in relation to protected health information, the parties intend for both this Agreement and BAA or equivalent agreement to be binding upon them and the BAA or equivalent agreement is incorporated into this Agreement by reference.
15.11 The parties have participated mutually in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted mutually by the parties and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
15.12 The parties have agreed that this Agreement as well as any notice, document or instrument relating to it be drawn up in English only; les parties aux presentes ont convenu que la presente convention ainsi que tous autres avis, actes ou documents s'y rattachant soient rediges en anglais seulement.
15.13 Each party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
15.14 Insurance. During the Term of this Agreement, Arctic Wolf shall carry all insurance typically carried by businesses of its type and shall, upon request by Customer, provide a certificate of insurance reflecting such coverage. At a minimum, Arctic Wolf agrees to maintain the following insurance levels per occurrence: Worker's Compensation and Employers' Liability at $1,000,000 (or, if greater, in compliance with statutory requirements), Commercial General Liability at $1,000,000, Errors & Omissions (Professional Liability, including Cyber) Coverage in an amount no less than $2,000,000, and Umbrella Liability at $2,000,000. Upon request by Customer, the Commercial General Liability insurance will include Customer as an additional insured, but only to the extent of liabilities falling within Arctic Wolfs indemnity obligations pursuant to the terms of this Agreement.
16. Non-Appropriation. This Agreement is subject to the fiscal provisions of Customer's Municipal Code, and this Agreement wi ll terminate without any penalty (a) at the end of prepaid Subscription Term in the event that funds are not appropriated for a renewal Subscription Term. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement.
Arctic Wolf Networks - Solutions Agreement
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[signature page to follow]
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DocuSign Envelope ID DA533639-36AF-4A9B-B6C9-2C06F7 A9FBB8 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives on the Effective Date.
Arctic Wolf Networks, Inc.:
Signed: ra:z: bfulL '--CAOF54956720469 ...
Name: Andrew Hill
Title: Chief Legal Officer & General Counsel
Date: 4/27/2023
Notice Address:
PO Box 46390
Eden Prairie, MN 55344
Attn: General Counsel
[email protected]
Arctic Wolf Networks -Solutions Agreement
Last Updated: 2023.02.01
Customer:
ID~ Signed:
- Name:
Title:
Date:
Notice Address:
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DATASHEET
©2022 Arctic Wolf Networks, Inc. All rights reserved. | Public Arctic Wolf Managed Risk
Solution
Concierge Security Team
The Concierge Security Team (CST) is your
single point of contact for your Arctic Wolf
Managed Risk solution. Your CST serves
as your trusted security advisors and an
extension of your internal team, customizing
services to your needs.
24x7 Monitoring
Around-the-clock monitoring for
vulnerabilities, system misconfigurations,
and account takeover exposure across your
endpoints, networks, and cloud environments.
Deliver timely critical outcomes with the deep
scan tools.
Strategic Recommendations
Your named security operations expert
becomes your trusted security advisor,
working with you to make recommendations
that harden your security posture over time.
Personalized Engagement
Regular meetings with your named security
operations expert let you review your
overall security posture and find areas of
improvement that are optimized for your
environment.
f Continuously scans your environment for
digital risks
f Performs regular risk posture reviews
f Provides actionable remediation guidance
f Works with you to build risk
management plans
f Delivers a customized risk management
plan to prioritize remediation and
measure progress
f Provides comprehensive visibility into
your risk posture
Organizations everywhere struggle with the complexity of identifying and managing security risks within their environment. Often, even fundamental information like what assets exist, which systems have vulnerabilities, and which systems are misconfigured is difficult to obtain. Even when this information is available it usually overwhelms the security team because its existing tools generate too many alerts and lack context. As security teams struggle with what to do next and how to prioritize, these risks pile up and leave organizations vulnerable to threats and damaging data breaches.
Built on the industry’s only cloud-native platform to deliver security operations as a concierge service, Arctic Wolf® Managed Risk enables you to define and contextualize your attack surface coverage across your networks, endpoints, and cloud environments; provides you with the risk priorities in your environment; and advises you on your remediation actions to ensure that you benchmark against configuration best practices and continually harden your security posture.
Continuous Risk Management Delivered by the
Concierge Security® Team
Assess
Determine your cyber
risk in the context of
your business
» Classification and
Contextualization
» Risk Scoring
» Concierge-Led
Prioritization
Harden
Expertise to guide your
strategy and help you
harden your environment
» Configuration
Benchmarking
» On-Demand
Reporting
» Guided Remediation
Discover
The ability to discover
and gain visibility to your
current attack surface
» Attack Surface
Coverage
» Dynamic Asset
Discovery
» Account Takeover
Risk Detection
By 2022, organizations that use the riskbased vulnerability management processes will have 80% fewer breaches.
— Dale Gardner, Forecast Analysis: Risk-Based Vulnerability Management, Worldwide | Published: 14 June 2019 ID: G00384640
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©2022 Arctic Wolf Networks, Inc. All rights reserved. | Public Deployment Phase
Our team will work with you to
deploy the Arctic Wolf® Platform,
install the Arctic Wolf® Agent,
integrate critical data points,
configure Cloud Security Posture
Management, and build an
understanding of your network
through internal, external, and hostbased vulnerability assessments.
Configuration Phase
We provide clear understanding
and full visibility into your
attack surface through the
following steps:
Active Vulnerability
Management Cycle
This cyclical 4-step process
ensures proper coverage, provides
prioritization of risks, allows
for consultation, and ensures
mitigation efforts succeed.
Concierge Kick-Off
Walk-through of the Managed Risk Process,
Q&A about your environment, goal defining,
expectation setting
Install and integrate scanners; configure the
Cloud Security Posture Management
Identity and Coverage Resolution
Insight on device coverage, network
coverage, and identity issues; verification of
total attack surface coverage
Define and Configure Asset Context
Review of initial critical asset list, identification
of gaps, recommendations for asset criticalities,
workflow, and organization tagging
Threat Landscape and Prioritization Review
Tailored risk prioritization according to asset
and risk context on your overall attack surface;
remediation recommendations
Managed Risk Process
INSTALLATION AND INTEGRATION STAGE
CORE STAGE
FUNDAMENTALS STAGE
FUNDAMENTALS STAGE
OPTIMIZED STAGE
Deployment Configuration Review Active Vulnerability Management Cycle Identify differences
between the initial /
previous vulnerability
and asset baseline to
understand attack
surface
Set priorities
for mitigation
and remediation
through risk metrics
and prioritized risk
links
Rescan risks
to ensure that
mitigation efforts
were successful
Resolution of
priority risks with
CST, discussions to
reduce overall risk
Discovery Phase Assess Phase
Harden Phase
Validation Phase
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©2022 Arctic Wolf Networks, Inc. All rights reserved. | Public External Vulnerability Assessment
Continuously scans internet-facing assets to understand your company’s digital footprint and quantify your
business’s risk exposure. Key features include:
» Continuous scanning of external-facing assets
» Cloud Security Posture Management (CSPM)
» Account takeover risk detection
» OWASP top-10 scanning
» Automated sub-domain detection
Internal Vulnerability Assessment
Continuously scans all your internal IP-connected
devices while cataloging your core infrastructure,
equipment/peripherals, workstations, Internet of things (IoT) devices, and personal (e.g., tablets, cell phones) devices. Key features include:
» Continuous scanning of internal assets
» Proactive risk monitoring
» Dynamic asset identification and classification
» Stateless scanning and secure transfers
Host-Based Vulnerability Assessment
This capability extends visibility inside devices
through continuous host-based monitoring to identify
and categorize assets, as well as reveal system
misconfigurations, user behaviors, and vulnerabilities
that put your organization at risk. Key features include:
» Endpoint agents for Windows Server/workstation,
MacOS, and Linux distributions
» Proactive endpoint risk monitoring
» Audit reporting
» Security controls benchmarking
Quantify Your Cyber Risk Posture
A cloud-based dashboard provides visibility into
continuous cyber risk assessment by incorporating all
meaningful cyber risk indicators from your business. It identifies the highest-priority issues and alerts you to emerging risks before they escalate into real problems.
It empowers you to take meaningful, efficient action to mitigate risk using these key features:
» Comprehensive risk profiling
» Informative user interface
» Proactive notifications and alerts
» Actionable reporting
» API integrations
Arctic Wolf Managed Risk Capabilities
Having a team to assess and manage vulnerabilities while monitoring our environment really helps us reduce our threat surface. We’ve made considerable progress in rebuilding integrity and trust in our IT systems, but risk never goes away—and if we aren’t aware of it, we can’t work to mitigate it. — Dr. Jason A. Thomas, Chief Operating Officer and Chief Information Officer, Jackson Parish Hospital ©2022 Arctic Wolf Networks, Inc. All rights reserved. | Public 346
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©2022 Arctic Wolf Networks, Inc. All rights reserved. Arctic Wolf Networks, AWN and the Arctic Wolf Networks logo are trademarks of Arctic Wolf Networks, Inc. in the United States and/or other jurisdictions. Other names used in this document are for identification purposes only and may be trademarks of their respective owners.
DATASHEET | 4
AW_DS_0422
Security Risk Scoring
For effective risk management, you need to know if
your security posture improves or declines over time.
Benchmarking against other organizations in similar
industries helps you understand where you stand and
how to improve.
Configuration Benchmarking
To help you prioritize your risk mitigation, configuration benchmarking is a risk score based on criteria such
as the attack vector accessibility, attack complexity,
and the impact of accessed data. These benchmarks
provide context so you can address the most critical
misconfigurations first.
Account Takeover Risk Detection
By continuously scanning the dark and gray web for
corporate credentials harvested in data breaches,
account takeover detection enables you to quickly take
action to secure compromised accounts. Typically, your
solution partner provides details such as the source,
description of the data breach involved, and the exposed emails.
Cloud Security Posture Management (CSPM)
A solution that protects against misconfigurations,
mismanagement, and other mistakes occurring in cloud
infrastructure, CSPM includes prevention, detection,
and response capabilities based on criteria such
as security frameworks, IT policies, and regulatory
compliance.
Asset Inventory
Your attack surface constantly changes as you add more
users and hosts. To build and maintain a comprehensive
inventory of assets, dynamic asset identification
profiles and classifies your IT assets automatically and continuously so that no new asset falls through the
cracks.
Asset Tagging
Managed risk allows you to gain additional asset context of your risk prioritization efforts, assisting with asset classification and asset organization efforts. You can use asset tags to pivot and review assets as well as your risks during your risk management and hardening efforts.
It makes the automation of managing assets possible,
makes reports more meaningful for the business, and
improves risk prioritization efforts.
Asset Criticality
Assigning an asset a level of criticality as an attribute for risk prioritization provides a standardized critical labeling system with a clear definition of the asset’s
importance. The level of asset criticality can be critical, high, medium, low, or unassigned.
Risk Remediation Steps
Managed risk allows you to export a report with
remediation resources against your risk, vulnerabilities, and assets. By including the remediation steps
alongside the vulnerabilities, you can efficiently—and
consistently—remediate known risks.
Arctic Wolf Managed Risk Capabilities (Continued)
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©2023 Arctic Wolf Networks, Inc. All rights reserved. | Public Concierge Security Team
The Concierge Security Team (CST) is your
single point of contact for your Arctic Wolf
Managed Detection and Response (MDR)
solution. Your CST serves as your trusted
security operations advisor and an extension
of your internal team, and provides you with:
• 24x7 monitoring
• Alert triage and prioritization
• Custom protection rules
• Guided remediation
• Detailed reporting and audit support
• Ongoing strategic security reviews
Leverage Existing Infrastructure
The Arctic Wolf MDR solution leverages security
technologies within your current environment
so you can quickly detect, respond, and recover
from threats without worrying about vendor
lock-in, or replacing your existing systems.
Advanced Threat Detection
Machine learning with adaptive tuning detects
advanced threats and provides forensic
analysis for greater efficiency and scale.
Managed Containment
Rapidly respond to threats and stop their
spread by preventing host devices from
communicating externally, as well as
with other devices on your network.
IR JumpStart Retainer
Arctic Wolf® IR JumpStart Retainer is
the first proactive incident response
retainer that combines incident response
planning with a 1-hour SLA and no prepaid
hours. Arctic Wolf MDR customers may
be eligible to add IR JumpStart to their
service with no additional cost.
Threat Detection and Response Delivered by
the Concierge Security® Team
Organizations everywhere are struggling with detecting and responding to modern cyber threats efficiently. While many IT departments have deployed security tools in an attempt to address this, the lack of 24x7 coverage, extensive security operations expertise, and a well-staffed security team means many threats go unnoticed and can linger in the environment for months. Many high-profile data breaches occur not because the security tool failed to raise an alert — they fail because the alert isn’t addressed, or is overlooked.
The Arctic Wolf Concierge Security Team has
found latent threats lingering in 73% of our
customers’ environments within the first 90
days of the engagement.
Built on the industry’s only cloud-native platform to deliver security operations as a concierge service, the Arctic Wolf Managed Detection and Response solution eliminates alert fatigue and false positives to promote a faster response with detection and response capabilities tailored to the specific needs of your organization. Your Arctic Wolf Concierge Security Team works directly with you to perform threat hunting, incident response, and guided remediation, while also providing strategic recommendations uniquely customized for your environment.
Arctic Wolf® Managed Detection
and Response Solution
Detect
See more with
continuous monitoring
and threat hunting
managed by security
operations experts
• Broad visibility
• 24x7 monitoring
• Threat hunting
Respond
Managed investigation
and rapid response to
quickly contain threats
• Managed
investigations
• Incident response
• Log retention
and search
Recover
Learn from incidents
and implement custom
rules and workflows for
proactive protection
• Guided remediation
• Root cause analysis
• Personalized
engagement
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©2023 Arctic Wolf Networks, Inc. All rights reserved. Arctic Wolf Networks, AWN and the Arctic Wolf Networks logo are trademarks of Arctic Wolf Networks, Inc. in the United States and/or other jurisdictions. Other names used in this document are for identification purposes only and may be trademarks of their respective owners.
SOC2 Type II Certified
AW_DS_MDR_0123
The Arctic Wolf Difference
Broad Visibility
Security telemetry collected from internal and external networks, endpoints, and cloud environments are enriched with threat feeds, OSINT data, CVE information, ATO data, and more to provide granularity and context to incidents that are investigated and triaged by the Concierge Security Team.
Arctic Wolf Customer Portal – Tactical and Strategic Insights A purpose-built GUI provides visibility into open tickets, lets you interact with your CST, view your security score, and view deployment elements such as the number of Arctic Wolf® Agents currently deployed.
Summary and customized reports to understand your security posture and fulfill compliance needs
“The value for me is that
Arctic Wolf is an extension of
our team. Arctic Wolf has helped
enhance our security and improve
our compliance reporting posture
while enabling the Bay Federal
team to focus on projects that add
the most value to our business.”
— Richard Roark
VP and Chief Information Officer (CIO),
Bay Federal Credit Union
Endpoint Threat Detection and Response
The included Arctic Wolf Agent provides endpoint intelligence and enhanced threat detection capabilities that give our security engineers deep, pervasive visibility into your security posture. • Sysmon event monitoring provides east/west visibility into the lateral movement of threats
• Weekly endpoint reporting
• Managed containment
Unlimited Log Retention and Search
The Arctic Wolf® Platform automatically collects, normalizes, analyzes, and retains log data from existing networks, systems, and applications for a minimum of 90 days and is available on-demand to address your reporting and compliance needs.
About Arctic Wolf®
Arctic Wolf is the global leader in
security operations, delivering the first
cloud-native security operations platform
to end cyber risk. Powered by threat
telemetry spanning endpoint, network,
and cloud sources, the Arctic Wolf®
Security Operations Cloud ingests and
analyzes trillions of security events each
week to enable critical outcomes for
most security use cases. The Arctic Wolf
Platform® delivers automated threat
detection and response at scale and
empowers organizations of any size to
stand up world-class security operations
with the push of a button.
For more information about Arctic Wolf,
visit arcticwolf.com.
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Managed Detection and Response service:
- You will be provided a dedicated Concierge Security Team that will act as. Your trusted security operations advisor.
- 24x7 monitoring
- Alert triage and prioritization
- Custom protection rules
- Detailed reporting and audit support
- Ongoing strategic security reviews
Managed Risk Service:
- Continuously scans your environment for digital risks - Perform regular risk posture reviews
- Provide actionable remediation guidance
- Work with you to build risk management plans
- Deliver a customized risk management plan to prioritize remediation and measure progress - Provide comprehensive visibility into your risk posture 350
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Prepared For: Quote #: Q-164350 - 1
Bill Mitchell Expiration Date: 5/11/2023
[email protected] Payment Terms: Net 30
Billing Cycle: Annual
Arctic Wolf Networks, Inc. Platform Location: United States Quote Term (Months): 12 8939 Columbine Rd, Suite 150 Committed Term (Months): 12 Eden Prairie, MN 55347 Terms: Custom Terms
Shipment Outside US/CA/UK/EU:
Transaction Type: Direct
Prepared By: Joe Charlesworth Bill To: Ship To:
Email: [email protected] IT Billing City of Cupertino Phone: [email protected]
City of Cupertino City of Cupertino
10300 Torre Ave. 10300 Torre Ave
Cupertino, CA 95014 Cupertion, CA 95014
Item Description - Subscription Item Quantity Subscription Start Date
Subscription
End Date
Annual List
Price
List Total Discount
%
Net Total
Arctic Wolf MDR user license AW-MDR-USER 412 7/13/2023 7/12/2024 $200.00 $82,400.00 60 $32,960.00 Arctic Wolf MDR server license AW-MDR-SE 80 7/13/2023 7/12/2024 $200.00 $16,000.00 60 $6,400.00 Arctic Wolf 200 Series Sensor AW-MDR-2XX-S 3 7/13/2023 7/12/2024 $3,000.00 $9,000.00 60 $3,600.00 Arctic Wolf MDR Office 365 user license AW-MDR-O365 354 7/13/2023 7/12/2024 $22.50 $7,965.00 60 $3,186.00 Arctic Wolf MDR Log Retention - 1 year AW-MDR-1YR 492 7/13/2023 7/12/2024 $14.40 $7,084.80 60 $2,833.92 Arctic Wolf MDR Data Exploration AW-MDR-EXPLR 492 7/13/2023 7/12/2024 $30.00 $14,760.00 60 $5,904.00 Arctic Wolf Platform - Users and Servers AW-PLATFORM 492 7/13/2023 7/12/2024 $15.00 $7,380.00 100 $0.00 Arctic Wolf Managed Risk user license AW-MR-USER 412 7/13/2023 7/12/2024 $100.00 $41,200.00 70 $12,360.00 Arctic Wolf Managed Risk server license AW-MR-SE 80 7/13/2023 7/12/2024 $100.00 $8,000.00 70 $2,400.00 Arctic Wolf IR JumpStart Retainer AW-IR-JSR 1 7/13/2023 7/12/2024 $5,000.00 $5,000.00 100 $0.00 Subtotal Subscription Fees* USD 69,643.92
Subtotal One-Time Fees USD 0.00
Total Fees USD 69,643.92
*The Net Total price for each item in the table above will increase by 5.0% on (i) the annual anniversary of the Subscription Start Date or (ii) the end of any prepaid, in full multi-year Committed Term (the "Increase"). Thereafter, pricing for any subsequent renewals is as set forth in the Agreement.
Terms
This Order Form and the applicable agreement for the product or Solutions listed herein and located at https://www.arcticwolf.com/terms/ (or equivalent agreement executed by the parties), as may be amended from time to time (collectively the "Agreement") is entered into between Arctic Wolf and the customer listed in the signature panel below ("Customer"). Acceptance of this Order Form is acceptance of any updated terms in the Agreement, unless otherwise set forth in your Agreement. Customer acknowledges and accepts the terms of the Agreement by executing this Order Form or by issuing a Purchase Order ("PO") for the products or Solutions referenced herein. The Order Form Effective Date is the earlier of : (i) the date of first signature below or (ii) the date of receipt of a PO. Unless otherwise defined in this Order Form, all defined terms shall have the same meaning as set forth in the Agreement.
SKUs with "One-Time Fees" are not sold on a subscription or recurring basis. Unless otherwise provide on this Order Form, all One-Time Fees shall be invoiced on the first invoice (where applicable), along with the Subscription Fees for the Subscription Term, as set forth above or in any Invoice Schedule herein. Unless otherwise set forth on this Order Form, the first invoice shall be invoiced on the Order Form Effective Date. All subsequent invoices for Fees, both One-Time (to the extent applicable) and Subscription Fees (collectively, "Fees"), shall be invoiced 30 days in advance, in accordance with the billing frequency stated on this Order Form. Fees are non-refundable and do not include any sales, use or excise taxes now or hereafter imposed by any governmental authority ("Taxes") with respect to the products listed above. Applicable Taxes may be invoiced and due in accordance with the Agreement.
The terms of this Order Form are deemed Confidential Information as defined in the Agreement and may not be disclosed except as otherwise provided in the Agreement.
Additional Terms
The Subscription may be renewed, in its entirety (including any mid-subscription increases in usage), for two (2) additional twelve (12) month terms. The fees associated with the Solutions included in the first twelve (12) month renewal (the “Initial Renewal”) shall not exceed five percent (5%) of the fees listed above, plus any fees for midsubscription increases in usage. The fees associated with the Solutions included in the second twelve (12) month renewal (the “Second Renewal”) shall not exceed five percent (5%) of the fees paid for the Initial Renewal, plus any fees for all mid-subscription increases in usage. Thereafter, the Subscription may be renewed in accordance with the terms of the Agreement. The terms contained in this Order Form are a one-time offer and shall not be applicable to any subsequent renewal.
Q-164350 - 1
EXHIBIT C
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By signing below, Customer acknowledges and agrees to the terms of this Order Form and the Agreement referenced above.
City of Cupertino
\s1\
By
\signer_name__1\
Name
\signer_title__1\
Title
\d1\
Date
© 19-1.0 Arctic Wolf Networks, Inc.
All Rights Reserved.
<meta name="robots" content="noindex">
Q-164350 - 1
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SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A : NAIC #
NAME: CONTACT
(A/C, No): FAX
E-MAIL ADDRESS:
PRODUCER
(A/C, No, Ext): PHONE
INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR WVDADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$ PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person) COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOS ONLY AUTOS NON-OWNED OWNED SCHEDULED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?
(Mandatory in NH) DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEEE.L. EACH ACCIDENT EROTH- STATUTE PER
(MM/DD/YYYY) LIMITS POLICY EXP(MM/DD/YYYY) POLICY EFFLTR TYPE OF INSURANCE POLICY NUMBER INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $ AGGREGATE $
$
OCCUR
CLAIMS-MADE DED RETENTION $
PRODUCTS - COMP/OP AGG $ GENERAL AGGREGATE $ PERSONAL & ADV INJURY $ MED EXP (Any one person) $
EACH OCCURRENCE $ DAMAGE TO RENTED
PREMISES (Ea occurrence) $ COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC
CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
8/4/2022
Newfront Insurance Services
777 Mariners Island Blvd Suite 250
San Mateo, CA 94404 650-488-8565
www.theabdteam.com Federal Insurance Company 20281
Chubb National Insurance Company 10052
Sompo / Underwriters at Lloyd's, London (VI) 15642
Corona / Underwriters at Lloyd's, London (VI) 15642
Travelers Casualty and Surety Co America 31194
Standard Fire Insurance Company 19070
A 36075758 7/1/2022 7/1/2023 1,000,000
1,000,000
✓
10,000
✓
1,000,000
2,000,000
2,000,000
A 73628802 7/1/2022 7/1/2023 1,000,000
✓ ✓
A ✓ ✓ 78196822 7/1/2022 7/1/2023 5,000,000
5,000,000
B 71836844 (AOS) 7/1/2022 7/1/2023 ✓
A 71836845 (MS Only) 7/1/2022 7/1/2023 1,000,000 N
1,000,000
1,000,000
C Errors & Omissions/Cyber PRO30022162600 7/8/2022 7/1/2023 E&O/Cyber Limit: $3,000,000 D Errors & Omissions/Cyber - Excess TRICE01869 7/8/2022 7/1/2023 Excess Limit: $5,000,000 E Crime 107192098 7/1/2022 7/1/2023 Crime Limit: $1,000,000 Rod Sockolov
Cert Request
[email protected]
✓
Arctic Wolf Networks, Inc.
8939 Columbine Road
Eden Prairie MN 55347
69592342
Evidence Only
RE: Evidence of Insurance.
69592342 | 22-23 GL/Auto/Umb/WC/E&O $8M/Crime | Patra (1) | 8/4/2022 11:10:32 AM (PDT) | Page 1 of 1
EXHIBIT D
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CITY OF CUPERTINO
Agenda Item
23-12272 Agenda Date: 5/16/2023
Agenda #: 8.
Subject: Consider authorizing the City Manager to execute a Third Amendment to Professional Services agreement with Avocette Technologies, Inc., for Accela Configuration and Support Services, for $220,000, over the next three years for a total cost of $392,000 across five years Authorize the City Manager to execute a Third Amendment to Professional Services agreement with Avocette Technologies, Inc., for Accela Configuration and Support Services for $220,000, over the next three years for a total cost of $392,000 across five years.
CITY OF CUPERTINO Page 1 of 1 Printed on 5/10/2023
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CITY COUNCIL STAFF REPORT
Meeting: May 16, 2023
Subject
Consider authorizing the City Manager to execute a Third Amendment to Professional Services agreement with Avocette Technologies, Inc., for Accela Configuration and Support services, for $220,000 over the next three years for a total cost of $392,000 across five years.
Recommended Action
Authorize the City Manager to execute a Third Amendment to Professional Services agreement with Avocette Technologies, Inc., for Accela Configuration and Support services, for $220,000 over the next three years for a total cost of $392,000 across five years.
Reasons for Recommendation
This proposed Third Amendment with Avocette Technologies, Inc., provides continued configuration support services to Accela, our Land Management System (LMS) for enhancements to our building and planning permitting, business license application and issuance, building inspection services and now added Code Enforcement services.
As part of an approved FY2022‐23 request, Applications division consolidated Code Enforcement (CE) operations under Accela LMS and Cupertino 311 service request. The project is underway and consists of automating CE business processes as working with one system creates a more efficient streamline processes and trusted outcome. Additionally, custom reports will become more efficient to generate due to all relevant data stored within one database in one application.
Finally, code enforcement complaints and service requests will be seamlessly routed from Cupertino 311 system to Code Enforcement officers via the same system.
Benefits to the public with these services accessible from the system portal ACA include:
Applying and paying for building permits.
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Scheduling building inspections.
Applying and searching for planning permits.
Applying and renewing business licenses including fee payments. A dedicated custom portal with real‐time status notifications.
Through the Accela ACA portal, the public can submit applications, check status on submitted applications, request inspections, and make payments. Avocette provides advanced technical support for the system and supplements internal resources.
Avocette was the original implementation partner of Accela for the City in 2018.
Their technical skills and deep understanding of the City’s system configuration and set up enables them to efficiently respond to day‐to‐day technical assistance related to bug fixes and enhancements. They help identify the best path and the right configuration set up to resolve technical requirements ranging from migrating a whole module to basic enhancement and updates. Avocette has a working partnership with Accela, so they are aware of regular system updates and new feature updates that get rolled out to our SaaS platform by Accela.
Avocette has the technical team the City can leverage to take advantage of the full functionality offered by Accela, upgrades that in turn improve and keep up with improvements in our back‐office system and City portal to provide better customer experience for portal visitors.
Innovation & Technology highly recommends amending the contract with Avocette Technologies, Inc, to extend it for an additional three years instead of issuing an RFP. The reasons for this are due to Avocette’s in‐dept knowledge of City of Cupertino’s environment and their experience in configuring Cupertino Accela platform within all existing modules of Planning, Building, Public Works, Business License and Code Enforcement Complaints. City’s Accela system has complex multiple integrations and the LMS is integrated with New World, City’s Financial system, ArcGIS for mapping, ProjectDox for plan check review and Laserfiche, City’s digital records system for document storage. Avocette understands these complex integrations which is an important component of supporting this system.
The current Second Amendment with Avocette Technologies, Inc., to consolidate Code Enforcement and provide support to LMS and Business License will end June 30, 2023. Staff recommends that the Council approve the Third Amendment to continue enhancing CE consolidation and provide efficient and uninterrupted services for Cupertino’s residents and customers. Migrating to an alternative Vendor other than Avocette would necessitate taking a considerable step backwards and could potentially undermine the success of permitting‐licensing‐ 356
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enforcement functionality for the City. It is important to note that our current processes and architecture have been honed over the years of analyzing efficiencies specific to the Cityʹs practices and fine‐tuning our processes. Therefore, a shift to a new vendor may compromise the efficacy of our existing Application Architecture.
Sustainability Impact
Enterprise digital systems like Accela reduces the volume of paper used for customer transactions by providing digital permits, licenses, and online fee payments, conserving natural resources, and reducing greenhouse gases generated during the production and disposal of paper. Additionally, in time, more customers are expected to complete permitting, licensing and inspections online, further reducing vehicle travel and use of paper. Implementation of paperless office strategies like this one are prioritized in Cupertino’s Climate Action Plan (M‐SW‐1).
Fiscal Impact
The cost of Avocette Technologies, Inc., services provided for the last two fiscal years and for the next three years is $392,000, and is budgeted in the Applications division budget, GL account 100‐32‐308 700‐702 Contract Services account.
The table below outlines the subscription cost.
YEAR PRICE SERVICES PROVIDED
FY21‐22 $87,000 Base Agreement Accela Configuration and Support Services FY22‐23 $85,000 Second Amendment Accela Configuration and Support Services
Amendment III
FY22‐23 $50,000 Third Amendment for Code Enforcement Configuration and Support Services
FY23‐24 $50,000 Third Amendment for Configuration and Support Services FY24‐25 $50,000 Third Amendment for Configuration and Support Services FY25‐26 $50,000 Third Amendment for Configuration and Support Services FY24‐26 $20,000 10% Contingency
$220,000 Third Amendment Total Cost
$392,000 Total Contract Cost
California Environmental Quality Act
Not Applicable.
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Prepared by: Nidhi Mathur, Applications Manager
Reviewed by: Bill Mitchell, Chief Technology Officer
Michael Woo, Senior Assistant City Attorney
Approved by: Pamela Wu, City Manager
Chris Jensen, City Attorney
Attachments:
A – Third Amendment to Avocette Technologies, Inc.
B – Exhibits A2, B2, & C2
C – Professional Services Agreement Insurance Requirements D – Proof of Insurance
E – Base Agreement No. 21‐072
F ‐ First Amendment to Agreement 21‐072 dated 6‐30‐22
G ‐ Second Amendment to Agreement 21‐072 dated 07‐18‐22 358
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ATTACHMENT A
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Deliver to:
City of Cupertino
Attn: Nidhi Mathur
Phone: (408) 777-3377
E-mail: [email protected]
Response Contact:
Iain Cavanagh
Avocette Technologies Inc.
Phone: (604) 256-9070
E-mail: [email protected]
2 nd Floor – 422 Sixth Street, New Westminster, BC V3L 3B2 (604) 395-6000
(604) 395-6004
1-866-285-8885
GST # 889977195-RT0001
Head Office:
Phone:
Fax:
Toll Free:
City of Cupertino
ServicePlus++
Operational Support Services Contract for Accela Automation
ATTACHMENT B
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ServicePlus++ Support Services Agreement
i
Service + Vendor Services Agreement
Between Avocette Technologies Inc. (the
VENDOR)
at the following address:
2 nd Floor – 422 Sixth Street
New Westminster, BC
V3L 3B2
Phone: 604 395 6000
Phone Toll Free: 1 866 285 8885
City of Cupertino
(the CLIENT)
at the following address:
Cupertino City Hall
10300 Torre Avenue
Cupertino CA 95014-3202
Phone: (408) 777-3377
CLIENT AND THE VENDOR AGREE TO THE TERMS OF THIS DOCUMENT AND IN THE SCHEDULE OUTLINE BELOW.
SCHEDULE A – SERVICES: (As Per Attached Schedule A.)
ServicePLUS++ AS AND WHEN - Provide support and consulting services in support of the Client’s Accela Automation system,
FY 24 - From: July 1, 2023 To and including: June 30, 2024 Budget: Not to exceed $50,000
FY25 - From: July 1, 2024 To and including: June 30, 2025 Budget: Not to exceed $50,000
FY26 - From: July 1, 2025 To and including: June 30, 2026 Budget: Not to exceed $50,000
SCHEDULE B – PROJECTS: (As Per Attached Schedule B.)
Licensing Implementation Statement of Work.
From: April 1, 2023 To and including: June 30, 2023
Budget: Not to exceed $50,000
CONTINGENCY
From: April 1, 2023 To and including: June 30, 2026
Budget: Not to exceed $20,000
There is a 20% contingency ($20,000) available in this contract. Both Avocette and the City of Cupertino agree there may be unforeseen challenges that can affect the budget and that adjustments may need to be made.
Avocette will monitor progress against requested work and report budget burn monthly. The City of Cupertino and Avocette agree that the if the contingency funds are required, Avocette will prepare and present a proposal for the contingency funds based on a revised estimate to complete mutually agreed upon deliverables.
READ TERMS ON THE FOLLOWING PAGES
EXHIBITS B2 & C2
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ServicePlus++ Support Services Agreement
ii
TERMS OF CONTRACT
VENDOR’S OBLIGATIONS
1. The VENDOR will:
a) notwithstanding the date of execution and delivery of this agreement, provide the services (The “Services”) during the term (The “Term”) at the contract price established in Schedule “A” in accordance with this agreement; b) supply all labour resources necessary to provide the Service outlined in Schedule “A”; c) upon request of CLIENT, fully inform CLIENT of the work done by the VENDOR nominee in connection with the provision of the Services and permit CLIENT at all reasonable times to inspect, review and copy all accounting records, findings, data, specifications, drawings, working papers, reports, documents and material (collectively called the “Material) whether complete or otherwise that have been produced received or acquired by the VENDOR nominee as a result of this agreement;
d) ensure that the VENDOR complies with the CLIENT’s request that all time spent must be detailed in the ServicePLUS++ IT Service Management System along with a descriptor of the work carried out on a daily basis; e) comply with all applicable municipal, provincial/State and federal laws; f) at all times maintain a standard of care, skill and diligence in performance of the Services exercised and observed by persons engaged in the provision of services similar to the Services; g) at all times treat as confidential all information or material supplied to or obtained by the VENDOR and its nominees as a result of this agreement and will not permit the publication, release or disclosure of the same without the prior written consent of CLIENT;
h) be an independent Contractor and not be the servant, employee or agent of CLIENT i) ensure that all persons employed by it in connection with the provision of the Services are competent to perform them, adequately trained, fully instructed and supervised; j) ensure that all personnel hired by the VENDOR to provide the Services will be the employees or subcontractors of the VENDOR and not of CLIENT.
CLIENT OBLIGATIONS
2. CLIENT will:
a) make available to the VENDOR all available information considered by CLIENT to be pertinent to the Services; b) make available to the VENDOR such staff and subject matter experts for consultation as required to ensure the VENDOR can meet their obligation to the CLIENT;
c) ensure that the Client Point-of-Contact is available to review and approve the completion of incident resolution in a timely manner;
d) ensure that the Client Contract Manager is available to approve such Service Requests as may be necessary for the VENDOR to fulfill its obligations under the contract; e) ensure that staff are available to review and approve Service Requests in a timely manner; THE CONTRACT PRICE and PAYMENT TERMS
3. Contract Price and Payment Terms
a) Subject to the terms of this agreement the VENDOR will invoice the CLIENT for approved services as outlined in Schedule “A”. Fees will be calculated on the “Additional Hourly Service Request rate” on an hourly basis as outlined in Schedule “A”;
b) The VENDOR will submit written statements of account to CLIENT commencing no sooner than the date set out in Schedule “A” as the “Billing Date” and thereafter as Specified in Schedule “A”; 366
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ServicePlus++ Support Services Agreement
iii
c) All pricing is in the currency of the CLIENT;
d) Preapproved expenses for travel and living if required will be invoiced at cost; e) All invoices are payable net 30 days.
TERMINATION
4. In the event of a substantial failure of a party to comply with the provisions of this agreement, it may be terminated by the other party on ten (10) days written notice.
5. CLIENT may, in its sole discretion, terminate this agreement on 10 days written notice and the payment of funds required to be made pursuant to Section 8, will discharge CLIENT of all its liability to the VENDOR under this agreement.
6. Where this agreement is terminated before 100% completion of the Services, CLIENT will, subject to Section 7, pay to the VENDOR that portion of the Contract Price which is equal to the portion of the Services completed.
NON HIRE
7. The CLIENT agrees that during the term of this Agreement, and for the non-solicitation period of six months thereafter, shall not, without the prior written consent of VENDOR, induce or attempt to influence, directly or indirectly, an employee or subcontractor of VENDOR to leave the employ of VENDOR;
GENERAL
8. This agreement will be governed and construed in accordance with the laws of the Province of British Columbia.
9. Time will be of the essence of this agreement.
10. Any notice required to be given hereunder will be delivered by hand or mailed by prepaid registered mail to the address on this agreement or at such other address as either party may from time to time designate by notice in writing to the other, and any such notice mailed will be deemed to be received 48 hours after mailing.
11. This agreement will be binding upon CLIENT and its assigns and the VENDOR, its successors and permitted assigns.
12. A waiver of any provision or breach by the VENDOR of this agreement will be effective only if it is in writing and signed by CLIENT and will not be deemed to be a waiver of any subsequent breach of the same or any other provision of this agreement.
13. All materials provided to the VENDOR are to be treated confidentially.
14. The copyright for independent work produced prior to the start of this project and brought into this project remains exclusively the copyright of the producing party, all other copyright in the Material will belong to CLIENT.
15. The Schedules form an integral part of this agreement.
16. No amendment or modification to this agreement will become effective unless the same will have been reduced to writing and duly executed by the parties hereto.
17. This agreement, and any amendment made pursuant to Section 18, constitute the entire agreement between the parties.
18. Sections 1(b), (c), and (e) of this Agreement will notwithstanding the expiration or earlier determination of the Term, remain and continue in full force and effect.
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ServicePlus++ Support Services Agreement
iv
SIGNATURES
Avocette Technologies Inc. City of Cupertino
Name: Name:
Signed: Signed:
Title: Title:
Date: Date:
Iain Cavanagh
VP, Public Sector
2023/05/02
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ServicePlus++ Support Services Agreement
1 Schedule “A” – “As and When”
ServicePlus++ level of Service selected: AS AND WHEN
Hourly Service Requests rate:
FY24: $130/Hour
FY25: $133.90/Hour
FY26: $137.90/hour
1 ServicePlus++™ AS AND WHEN Service
Avocette’s ServicePlus++ AS AND WHEN service provides defined on-going support services aimed at maintaining a stable Accela environment.
ServicePlus++ AS AND WHEN Service Desk hours: 9:00 – 17:00 PST Monday to Friday exclusive of Statutory Holidays
1.1 Service Levels
The following service levels are included with ServicePlus++ AS AND WHEN service in order to achieve the level of support required for CLIENT’s Accela environment.
Service levels are divided into five priority levels and are monitored and measured against the service level commitment as shown below. Avocette uses the following definitions to measure service levels:
Acknowledge Request is an email from an Avocette representative that confirms that the request has been received and a ticket number has been assigned in our service request management system (defined in section 2.1);
Incident Resolution Time is the time from when the incident is reported to the time a work around or temporary solution has been implemented to address the specific incident; Incident Closure is the time from when the incident was reported to the time to hand over for production deployment with a permanent correction for the incident. If the incident closure requires an Accela fix, the Incident Closure times will not apply and will require direct participation of Accela which Avocette will assist with.
EXHIBIT A2
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ServicePlus++ Support Services Agreement
2 ServicePlus++ ™ AS AND WHEN service levels
Priority Definition Acknowledgment Resolution Time Closure Priority 1 Service Disruption for major
applications/systems and/or has major
impact on business operations and/or
impacts external customers
Guideline – has significant business impact.
Exclusive of CLIENT network or system
issues not covered.
Exclusive of external disaster or disruption.
< 1 Hour
Phone call
Acknowledgement is
required
< 4 Hours
Phone call to
Accela
Customer
Support
Center every
60 minutes
with updates
(if required)
< 3 Business
days
Priority 2 Partial service disruption for major
application/system and/or service
disruption for minor system and/or has
moderate impact on business operations
Guideline – affects business operation for at
least one department.
< 2 Hour < 4 Hours < 5 Business
days
Priority 3 Minor service disruption impacting 1-2 users significantly and/or has minimal impact on
business operations. Does not affect service
delivery to external clients.
Service Request may be raised for incident
remediation and resolution (refer section
2.1 for Service Request process).
< 1 Business day
Priority 4 Minor Service disruption with insignificant
or no impact on business operations
Workaround available
Guideline – Affects < 5people
Service Request may be raised for incident
remediation and resolution (refer section
2.1 for Service Request process).
< 1 Business day
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3 Priority Definition Acknowledgment Resolution Time Closure Priority 5 Causes no service disruption with no impact
on business operations and does impact
service deliver to clients. Additional work
needed to perform some functions.
Service Request may be raised for incident
remediation and resolution (refer section
2.1 for Service Request process).
< 5 Business days
Priority 3, 4 and 5 Service Levels are dependant on Avocette resource availability.
The following are required in order for Avocette to meet the above service levels:
CLIENT will provide all required subscription, software and/or hardware licenses required to support the application.
The support team will not be on-site at CLIENT’s location and Avocette’s support team will be able to access the CLIENT network remotely using an SSTP VPN connection to access the necessary application environments.
1.2 Service Level Reporting (optional for As and When)
Service level reporting is a key means of communication between CLIENT and Avocette. It is a forum to discuss the performance with respect to service levels, the accomplishments and challenges, and to have open honest dialog about the service delivery and relationship. It also allows potential risks to be discussed and addressed proactively. Service level reporting is provided through the Avocette service manager and as agreed to by the CLIENT. Service level meetings are recommended to review the report and to have dialog around the service delivery and support relationship.
1.2.1 Service Level Meetings
The following service level meetings are optional under AS AND WHEN service but Avocette recommends that they be conducted:
Weekly Prioritization meeting to review and rank incidents in priority. Monthly Planning meeting to assess service request planning, status, priority and actions. Annual Service Delivery review meeting to review the previous year and determine what adjustments are required for the next year.
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4 Attendees will include at least:
Avocette Service Delivery Manager
CLIENT Contract Manager
Note: Actual time spent conducting and documenting service level meetings will be charged at the contract rate.
Note: Avocette Weekly, Monthly, Quarterly and Annual meetings will occur via conference call unless otherwise requested.
1.2.2 Service Level Report
The service level report is prepared weekly and monthly and will include the following information:
An itemized list of all active requests/incidents annotated by Avocette ticket number in the current month and previous month.
Hourly usage for each ticket in the current month, the previous month and overall.
The status of each ticket as of the end of the period as well as any information that will assist both CLIENT and VENDOR in resolving the ticket.
Service Delivery
Service delivery is oriented around two specific processes:
1) Incident Management
a. The handling of Break Fix situations. In CLIENT terminology this is the ‘support’ type of requests that involve software fixes.
b. In the event of a Priority 1 or 2 incident, Avocette resources will be required to attend the Incident Report Meeting that will be scheduled by CLIENT within 48 hours of the incident.
2) Service Request Management
a. The handling of any request that is not expected to result in a software fix. This includes Maintenance, Enhancement and Operational (non-software related) requests. See section 5 for a list of optional services available.
The following sections will outline all the elements involved in Service Delivery and also walk through the expected workflow for both Incident Management and Request Management.
1.3 Service Request Management
Avocette uses a Service Management system to record and track all incidents and service requests under this contract. Once submitted, service request management application is used to support incidents and requests, assign tasks to internal team members and track time spent on specific requests.
The features offered are:
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5 Application Change Management by logging and tracking requests, bugs, and enhancements by application and client
Automatic email notifications within Avocette Systems for: new incidents; closed incidents; Escalations; Priority changes; Remediation, Resolution or Recovery; and Task Assignments Cross-referencing of incident reports
Time recording for activities and reporting on effort Root Cause capture
Control of user access to ensure security and privacy The service request management application is configured for each client and can be modified to accommodate business related requirements for reporting. CLIENT will be defined along with the details necessary to provide the reporting and incident management required to meet CLIENT Service Level reporting needs.
1.4 Incident Management
The incident management process occurs when CLIENT has a request to fix a production problem with your Accela environment.
The goal of incident management is to:
Maintain service level objectives; and
Return to the normal service level as soon as possible with the smallest impact on the business and user.
The process is triggered when the authorized CLIENT individual or group makes the request through:
Entry into the Cherwell Service Request Management System E-mail to Avocette (for non-emergency items only)
Phone call to Avocette (for emergency and high priority issues, phone is mandatory)
1.4.1 Incident Management Process
The following describes how Avocette will respond to an incident request. This process can be reviewed and adjusted if necessary to meet CLIENT’s specific needs. As noted previously, some incident may require an Accela fix and in those cases Avocette will support the reporting and communication with Accela.
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6 Avocette Application Management CLIENT Avocette 1.1 Request Support 1.2 Acknowledge Request 1.3 Create Incident Receive Acknowledge- ment Update Request 1.5 Resolve issue within SLA
1.4 Assign Team Resources 1.7 Recover Application
1.6b Approve Closure Phone/Email Priority 1 or 2? Yes Warm Handoff No Email/Phone Acknowledgement Application Recovered? Yes No
1.6a Request Closure
Figure 1: Procedure for Incident Management.
Task # Task Actor(s)
1.1 The CLIENT point-of-contact or Customer Service Center contacts the Avocette Service Desk via toll-free telephone number or email address.
CLIENT
application pointof-contact
1.2 All contacts are acknowledged upon receipt. Acknowledgement can be through email or by phone. In the event an incident is submitted which in the judgement of the service desk should be a level 1 or 2 incident the service desk will acknowledge by phone and recommend an upgrade of the incident priority.
Avocette Service
Desk
1.3 Avocette Service Desk creates a ticket for the request, assigning the request to Avocette’s primary support person and Service Delivery Manager.
Automatic email notifications are generated and sent to the Avocette Service Manager.
Avocette Service
Desk
1.4 If the request is a priority 1 or 2, the Avocette Service Desk speaks to the support resource and Service Delivery Manager directly to ensure the request is received in a timely manner (i.e., warm handover). CLIENT and Avocette’s managers are informed of priority 1 and priority 2 requests.
The Service Delivery Manager liaises with the primary resource to coordinate a solution, and may approach service manager to assign additional support team resources to recover and resolve the issue.
Avocette
Support Team
1.5 The support team works to recover the issue within the service levels. This may involve working directly with CLIENT staff to provide access to data, database logs, performance data, etc., in order to resolve the incident.
The support team promotes the fix to the CLIENT environment and completes the necessary requests to migrate to production.
Avocette
Support Team
1.6a If resolution of the issue provides recovery of the application, the Service Delivery Manager will seek approval from CLIENT to close the request.
CLIENT point-ofcontact
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7 Task # Task Actor(s)
1.7 If resolution of the issue does not also provide recovery of the application, the support team will work to complete the long-term solution to the issue.
Avocette
Application
Support Team
1.6b Avocette obtains approval from the CLIENT point-of-contact to close the request. The incident is only considered closed once it is successfully deployed to production and verified as being resolved by the CLIENT point-of-contact.
CLIENT point-ofcontact
1.5 Request Management
Avocette’s request management services support the management of service requests. This includes requests for maintenance, enhancements or other operational (non-software) requests. The goal of Request Management is to keep track of all requests, allow prioritization of the requests, track time spent, and report on the status of each request. Service request may be raised to address all Priority 3, 4 and 5 incident remediation and resolutions.
1.5.1 Request Management Process
The following describes how Avocette will respond to a service request.
Figure 2: Procedure for Maintenance, Enhancement and Operational Requests Task # Task Actor(s)
1.1 The CLIENT point-of-contact creates the initial service request by documenting the specific request and sending this to the Avocette’s Service Desk by sending an email. A template is used to document the Service Request.
This will be logged if not already initiated as a service request and assigned to the service delivery manager to assess.
CLIENT
application
point-ofcontact
1.2 The Service Delivery Manager will coordinate the team to assess the Service Request, complete the request with impacts and estimates, and return the Avocette
Support Team
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8 Task # Task Actor(s)
service request to CLIENT for approval. The development of the service request may involve collaboration between CLIENT and Avocette to ensure the requirements are understood and impacts accurately accounted for.
CLIENT will review and approve the Service Request. CLIENT
1.3 The service delivery manager will then schedule the work to be completed based on the agreed timeline expectations in the service request.
Avocette
Support Team
1.4 The service request is executed and the deliverables provided to CLIENT. Avocette Support Team
1.5 CLIENT will review the deliverables and complete any necessary user acceptance testing before giving the approval to proceed to production or accept the deliverable.
CLIENT
Service Requests must be approved and signed by the CLIENT Contract Manager and Avocette’s Client Manager before any work proceeds.
1.6 Approach to Maintain Service Levels
Avocette will assign qualified and cross trained resources to the support of the Supported Application Components. The support team will include a primary and backup resource fully trained in the application as well as the support procedures necessary to adhere to CLIENT standards. The Service Delivery Manager will ensure that the backup resource is ready in the event that the primary resource is unavailable for any reason. The primary goal is to ensure that service levels are maintained regardless of the individual schedules of the support team.
In addition, the Avocette Service Desk is provided with primary and backup resource contact information and will be kept informed when the primary resource is unavailable.
Cross training of the backup resources will be provided as part of initial transition to support and will occur annually thereafter as a refresher.
Avocette will maintain a repository for information, materials and details pertaining to support of the Supported Application Components (Knowledge Management). This will also include details on the specific CLIENT policies and procedures that will apply to this support service.
The Service Delivery Manager will ensure that there is adequate coverage during any absences or traditional vacation periods (Christmas Holidays) and will also communicate any upcoming absences to CLIENT during the service level report meetings.
In the event of a disaster in the Avocette Offices, CLIENT will be notified immediately, provided direct contact phone numbers for the support team, and support resources will work from home. 376
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9 1.7 Facilities and Equipment Requirements
CLIENT is not required to provide any permanent desk or office space. However, Avocette may require access to a drop in station at CLIENT from time to time during onsite visits. Avocette resources will require remote access into the CLIENT environment using a secure VPN or similar connection.
Support Team
Avocette’s support team is comprised of the following roles and provides on-going operation support for CLIENT’s Accela environment as follows:
Role Role Description
CLIENT Contract Manager/Point of Contact The CLIENT will assign a CLIENT Contract Manager/Point of Contact to be the primary contact for the Avocette Service Delivery Manager. (Note that other roles may be assigned as required)The CLIENT Contract manager/Point of Contact will:
1. Facilitate communications between Avocette and the
CLIENT to clarify incident/service request particulars (as needed)
2. Facilitate communications between Avocette and other CLIENT departments or technical areas in order to
diagnose and resolve the request
3. Arrange for User Acceptance Testing as required
4. Provide priorities and guidance to the Avocette support team for outstanding issues
5. Complete resolution details in the support tracking
system and closing the ticket
6. Attend monthly service level meetings
7. The following additional responsibilities are primarily related to Service Request Management:
8. Facilitate Authorization of work to proceed.
9. Manage communication with other application
stakeholders on implementation or significant changes
10. Facilitate approval of requirements and functional
specifications
Avocette Service Desk Support Analyst Avocette’s Service Desk is staffed with Service Desk Support Analysts who are responsible for receiving and acting upon incidents reported by ServicePlus++ clients.
The Avocette Service Desk Support Analyst:
1. Responds to incidents from ServicePlus++ clients
submitted by email or phone.
2. Provides basic user support as required such as password resets and other user support issues.
3. Based on the priority of the incident takes appropriate action to respond to the incident by performing a warm
handoff.
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10 4. Provides regular updates for high priority incidents.
Avocette Account Manager An Avocette Account Manager is assigned to each ServicePlus++ client and will be the person responsible for ensuring Avocette meets its commitments under this
contract. The Client Account Manager is also responsible for approving service requests on behalf of Avocette.
The Avocette Account Manager will:
1. Be responsible for Avocette’s commitments under the
contract.
2. Be available when necessary to meet with the client to address issues and concerns.
3. Approve Service Requests in a timely manner.
Service Delivery Manager A Service Delivery Manager is assigned to each ServicePlus++ client and will be the primary contact for managing incident resolution and service requests. Avocette always assigns a backup Service Delivery Manager, typically the Subject
Matter Expert, to each account so that service disruptions are avoided in the case of the primary service delivery manager not being available.
The Service Delivery Manager will:
1. Be responsible for ensuring service levels are met for all reporting incidents and communicating status of incident resolution processes to stakeholders
2. Manage the delivery team and ensures support coverage is in place to meet or exceed all service levels
3. Ensure proper communication to CLIENT regarding
release scope and expected delivery schedule and status during the implementation process
4. Provide estimates for Service Requests and work with the CLIENT Contract Manager to set priorities
5. Work with the CLIENT Contract Manager to develop
release plans for Service Requests
6. Ensure all required authorizations have been provided prior to initiating work or conducting migrations
7. Be responsible for adjusting the release processes if necessary in order to improve quality, reliability,
timeliness or overall customer satisfaction with the
releases and documenting the revised processes
8. Ensure decisions, priorities and action items are properly documented and communicated to the team members
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11 9. Work with the CLIENT Contract Manager and the
Avocette Support Team to prioritize incident resolution and closure
10. Conduct regular team meetings involving release scope, scheduling and status
11. Reports regularly to the Avocette Account Manager
Subject Matter Experts / Business Analyst A primary and secondary Subject Matter Expert is assigned to each ServicePlus++ client and is responsible for providing analysis of and recommendations for resolving incidents and providing analysis and design for service requests.
The Subject Matter Expert will:
1. Be responsible for understanding the business needs in relation to the application
2. Gather requirements for enhancements or service
requests
3. Document both “as is” and “to be” to enable technical team members to effectively configure the application
4. Liaise with CLIENT staff to understand and document
reporting requirements
5. Work with CLIENT to understand business problems in
relation to the application
6. Works with the Avocette Service Delivery Manager to
effectively timetable and deliver business analysis tasks as part of releases or service requests
Database Administrator Avocette’s core team also includes a Database Administrator.
The Database Administrator is not assigned to the team but is available as and when needed.
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Schedule “B” – “Projects”
Project Overview
The City of Cupertino is expanding their current Accela Civic Platform Implementation to include functionality which will include Code Enforcement.
Project Objectives
The purpose of this project will be to have the City of Cupertino Code Enforcement business Area handled through Accela
Methodology Overview
It is anticipated that the Code Enforcement Module Implementation project will follow a waterfall approach and will be completed in six stages. The data conversion stage will run concurrently to the Analysis and Documentation and Build and QA stages.
Scope
The following section describes the high-level scope for each stage of the project to meet the business objectives of City of Cupertino.
Stage Scope
Project Initiation Detailed planning and development of SOW and Project Plan, including approvals.
Analysis and
Documentation
Requirements analysis and documentation of system configuration design.
Build and QA Configuration, based on approved requirements and design and QA testing including test cases and remediation of defects.
Data Conversion Data conversion from existing Code Enforcement system to Accela.
UAT and Remediation UAT including test cases and remediation of defects GO-Live Implementation readiness and final go-live
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Project Timeline
Project timeline will be further defined closer to project initiation.
Project Estimate
The Code Enforcement project will be implemented as fixed price based on a blended rate of $130/hour with specific deliverables and estimates defined closer to project initiation.
Deliverables
The following section describes the expected deliverables that will be executed to meet the business objectives and business requirements of the City of Cupertino. In support of the implementation effort as described above, Avocette will provide the following detailed implementation services. For each deliverable, a description is provided as well as criteria for acceptance of the deliverable.
Deliverable # Deliverable Name
1 Project Initiation
2 Analysis and Documentation
3 Build and QA
4 Data Conversion
5 UAT and Remediation
6 GO-Live
Project Management
Avocette’s Project Manager will lead the project team to ensure all tasks are progressing according to the schedule. The Project Manager is empowered to make decisions on behalf of Avocette to best suit the needs of the City of Cupertino implementation and will work closely with the City of Cupertino Project Manager providing oversight to ensure synchronized execution of this agreement. Through the weekly status meetings, the Avocette Project Manager will coordinate with the City of Cupertino Project Manager to review and report on the following activities:
Status Reporting
Resource Management
Executive Project Oversight (Avocette)
Deliverable 1: Project Initiation
The following key deliverable are completed and accepted in this stage:
Deliverable Name Description
Project Initiation Kick off the project and develop statement of work 381
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In terms of specific output, the following will be executed for this deliverable:
Statement of Work
Project Plan – to be completed by Cupertino
Deliverable 2: Analysis and Documentation
The following key deliverable are completed and accepted in this stage:
Deliverable Name Description
Analysis and Documents Requirements analysis and documentation of system configuration design.
In terms of specific output, the following will be executed for this deliverable:
Analysis data gathering activities including workshops and remote analysis sessions Analysis Documents
Acceptance Criteria:
Completion of Analysis Sessions
Delivery of Analysis documents resulting from analysis Deliverable 3: Build and QA
Avocette will develop the solution in accordance with requirements established and documented in Deliverable 2: Analysis Sessions, Design and Documentation. Avocette will perform QA to ensure the implemented system aligns with the requirements outlined in Deliverable 2: Analysis Sessions, Design and Documentation.
Deliverable Name Description
Build and QA Build the solution and QA test of the system In terms of specific output, the following will be executed for this deliverable:
Completed Solution as detailed in the analysis documents QA Testing Results
Acceptance Criteria:
Demonstration of the solution
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Approve the Solution is as detailed in the analysis documents Review and acceptance of QA Testing Results (verification that the test results are within acceptable tolerances)
Deliverable 4: Data Conversion
This deliverable is comprised of the development of data conversion scripts to import existing Code Enforcement data into Accela and the running of the scripts. The deliverable includes two test runs. A final PRODUCTION run will be completed during Deliverable 6: Go Live.
Deliverable Name Description
Data Conversion Data conversion from existing Code Enforcement system to Accela.
In terms of specific output, the following will be executed for this deliverable:
Two test imports of data into SUPP environment
Necessary remediation to prepare the data for PRODUCTION Acceptance Criteria:
Successful import of existing data into SUPP environment Sign off that the data conversion is complete and ready for PRODUCTION Deliverable 5: User Acceptance Testing and Remediation
This deliverable is comprised of the assistance Avocette will provide to allow the City of Cupertino resources to accept that the solution meets the requirements as documented. Avocette will assist the City of Cupertino in the testing and validation of the solution and its readiness to be released for Production.
Deliverable Name Description
User Acceptance Testing and
Remediation
Provide UAT support for the City of Cupertino and
remediate any issues found.
In terms of specific output, the following will be executed for this deliverable:
Resolution of issues resulting from User Acceptance Testing Fully tested system that is ready to move to production 383
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Acceptance Criteria:
Completion of UAT
Sign off that the solution is complete and ready for PRODUCTION Deliverable 6: GO-Live and Support
Production Go-Live date is defined as the official date in which the solution moves from the test environment to production for daily City of Cupertino usage. This date will be agreed to by both Avocette and the City of Cupertino at project inception. In the weeks prior to moving to Production, Avocette will assist in final system validation, staff preparation assistance and training, and coordination of deployment.
Deliverable Name Description
Go-Live and Support Provide pre deployment and go-live support to facilitate the implementation of the solution
In terms of specific output, the following will be executed for this deliverable:
Develop and deliver the Deployment Checklist
Transfer of configuration data from Non-Prod to Production Acceptance Criteria:
Execution of deployment from Non-Prod to Production
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Appendix A: Definitions
The following definitions are used throughout this proposal:
“Acknowledge Request” means an email from an Avocette representative that confirms that a request has been received.
“Additional Support Services” means any additional work requested by CLIENT beyond the Base Support Services.
“Additional Support Services Fees” means the monthly fee paid to the VENDOR for the delivery of Additional Support Services.
“Approved Service Request” means a Service Request or a VENDOR Service Proposal for which the proposal and budget estimate provided by VENDOR has been approved by CLIENT and VENDOR has been instructed to proceed with delivery of the subject matter. “Base Support Services Fee” means the monthly fee paid to the VENDOR for the delivery of Base Support Services.
“CLIENT Point of Contact” means the person in CLIENT responsible for managing the contract and approving all expenditures. This person is also the CLIENT reference of all administrative matters associated with this contract.
“Contract Manager” means the Avocette Manager responsible for the delivery of Managed Services across multiple clients. The Service Delivery Manager reports to the Contract Manager. The Contract Manager is present at Monthly, Quarterly and Annual Service Level Review meetings with CLIENT. “Customer Support Center (CSC)” means CLIENT’s first level helpdesk service if used. The Customer Support Center is responsible for declaring the initial priority of an Incident. “Incident” means an event that degrades or disrupts the normal operation of the application that is reported to the Service Desk and given a unique tracking number. “Incident Resolution Time” means the time to complete the permanent corrective solution (resolve the root cause).
“On-call Hours” means those hours beyond the Standard Business Day. On-call services are available on request by CLIENT with one day’s notice.
“Preapproved Expenses” means those expenses incurred by the VENDOR in the execution of this contract including travel and living expenses as preapproved by the CLIENT. “Priority” means the degree of impact that an incident has on CLIENT business areas and clients. The priorities are graded from 1 through 5 and agreed response and resolution times are based on these priorities in the form of a Service Level Agreement. The Priority definitions can be found in Section 2 Service Levels.
“Services” means Base Support Services and Additional Support Services. 385
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“Service Desk” means the service desk operated by the VENDOR providing a single point of contact and 2 nd level support for all Services Incidents, and 1st level support for all Service Requests and Approved Service Requests for In-Scope Servers and In-Scope Applications. “Service Delivery Manager” means the Avocette resource responsible for ensuring CLIENT service levels are met and that CLIENT remains satisfied with the service being provided. The Service Delivery Manager manages the support team, ensures adequate coverage is in place, provides communication to CLIENT during incident recovery periods, and prepares the Service Level Reports. The Service Delivery Manager is present at Monthly, Quarterly and Annual Service Level review meetings at CLIENT. “Service Levels” means the operational performance required of, and guaranteed by, the VENDOR in the delivery of the Services, as set out in Section 2.
“Service Management Reporting” means the design, generation and delivery by the VENDOR of reports and reporting sufficient to meet CLIENT’s operational management requirements for the Services. “Service Request” means a formal request issued by CLIENT for maintenance (upgrades, preventative maintenance) and enhancements.
Service Requests are developed by CLIENT and typically include the description of the requested service, scope, expected deliverables and timeline expectations. Avocette will provide estimates for Service Requests within 5 business days. All service requests are sent to the Avocette Service Desk and given a unique tracking number.
“Standard Business Day” will be 7:00 a.m. to 5:00 p.m. Monday to Friday, not including Statutory Holidays.
“Statutory Holidays” – In the United States means New Year’s day, Martin Luther King day, Presidents Day, Memorial day, Independence day, Columbus Day, Veteran’s day, Thanksgiving day, Christmas day, Christmas day holiday and in Canada means New Year’s Day, Family Day (including Islander day, Louis Riel day, Viola Desmond day), Good Friday, Easter Monday, Victoria Day, Canada Day, Civic holiday (including AB, BC, SK, ON, NB, NU), Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, and Boxing Day.
“Support Team” means the Avocette resources that are involved in the day to day support of the Supported Application Components.
“Ticket” is a generic term for a unique tracking number that is generated by the Customer Service Centre or Avocette’s service request management application. 386
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Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 1 Form Updated Jan. 2022
Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable toCity.
INSURANCE POLICIES AND MINIMUMS REQUIRED
1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13).
c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or selfinsurance shall be called upon to protect City as a named insured.
2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. Not required. Consultant has provided written verification of noemployees.
4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant’s profession, with limits no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. If written on a claims made form:
a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the Services.
EXHIBIT D
Insurance Requirements
Design Professionals & Consultants Contracts
ATTACHMENT C
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Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 2 Form Updated Jan. 2022
OTHER INSURANCE PROVISIONS
The aforementioned insurance shall be endorsed and have all the following conditions and provisions:
Additional Insured Status
The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used).
Primary Coverage
Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’s insurance and shall not contribute to it.
Notice of Cancellation
Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums.
Waiver of Subrogation
Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either:
the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City.
Acceptability of Insurers
Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better.
Verification of Coverage
Consultant must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term.
Subconsultants
Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies.
Higher Insurance Limits
If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant.
Adequacy of Coverage
City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. 388
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ATTACHMENT D
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Cost of Bonds
the cost of bonds to release attachments, but only for bond amounts within the applicable Limits of Insurance. The Insurer does not have to furnish these bonds.
Loss of Earnings
all reasonable expenses incurred by the Insured at the Insurer Insurer in the investigation or defence of the Claim or Action including actual loss of earnings up to the per day Loss of Earnings Sub-limit shown in the Commercial General Liability Declarations because of time off work necessary in the assistance of the investigation or defence.
Bail Bonds
up to the Bail Bonds Sub-limit shown in the Commercial General Liability Declarations for the cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily injury Liability Coverage applies. The Insurer does not have to furnish these bonds.
Costs taxed against the Insured
all costs taxed against the Insured in the Claim or Action.
Insured.
Interest awarded against the Insured
interest awarded against the Insured on that part of the judgment within the applicable Limits of Insurance that the Insurer pays. If the Insurer makes an offer to pay the Limits of Insurance, the Insurer will not pay any interest based on that period of time after the offer.
Interest on any judgment
all interest on that part of any judgment, within the applicable Limits of Insurance, that accrues after entry of the judgment and before the Insurer has paid, offered to pay, or deposited in court, that part of the judgment that is within the applicable Limits of Insurance.
Blanket Additional Insureds
Blanket
Section extends the definition of Insured to include any person or organization described in subNamed Insured is required to add as an Additional Insured to the Commercial General Liability Coverage Sections under a written contract or written agreement, provided such contract or agreement:
1. is currently in effect or becomes effective during the Policy Period; and
2. was executed prior to:
a. the Bodily Injury or Property Damage; or
b. the offense that caused the Personal and Advertising Injury, for which such Additional Insured seeks coverage.
However, subject always to the terms and conditions of this Policy, including the Limits of Insurance, the Insurer will not provide such Additional Insured with:
i. the higher limit of insurance than required by such contract or agreement; or ii. coverage broader than required by such contract or agreement, and in no event broader than that described by the applicable sub- listed below.
Any Blanket
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Controlling Interest
Any person or organization with a majority interest in the Named Insured is an Insured, but only with respect to such person or organization's liability for Bodily Injury, Property Damage or Personal and Advertising Injury arising out of:
1. such person or organization's financial control of a Named Insured; or
2. premises such person or organization owns, maintains or controls while a Named Insured leases or occupies such premises,
provided that the coverage granted by this does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such Additional Insured.
Contractors and Owners
Any person or organization whom the Named Insured is required to include as an Additional Insured, but only with respect to such person or organization's liability for Bodily Injury, Property Damage or Personal and Advertising Injury caused in whole or in part by the acts or omissions, or the acts or omissions of those acting on the behalf:
1. in the performance of the ongoing operations subject to such written contract; or
2. in the performance of the work subject to such written contract, but only with respect to Bodily injury or Property damage included in the products-completed operations hazard, and only if:
a. the written contract requires you to provide the additional insured such coverage; and b. this coverage part provides such coverage.
However, no person or organization is an Additional Insured with respect to Bodily Injury, Property Damage, or Personal and Advertising Injury arising out of the rendering of, or the failure to render, any professional architectural, engineering, or surveying services, including the preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and supervisory, inspection, architectural or engineering activities. Co-owner of Insured Premises
A co-owner of a premises co-owned by a Named Insured and covered under this Policy but only with respect to such co-owner's liability for Bodily Injury, Property Damage or Personal and Advertising Injury as co-owner of such premises.
Lessor of Equipment
Any person or organization from whom a Named Insured leases equipment, but only with respect to liability for Bodily Injury, Property Damage or Personal and Advertising Injury caused, in whole or in part, by the Named Insured's maintenance, operation or use of such equipment, provided that the Occurrence giving rise to such Bodily Injury, Property Damage or the offense giving rise to such Personal and Advertising Injury takes place prior to the termination of such lease.
Lessor of Land
Any person or organization from whom a Named Insured leases land but only with respect to liability for Bodily Injury, Property Damage or Personal and Advertising Injury arising out of the ownership, maintenance or use of such land, provided that the Occurrence giving rise to such Bodily Injury, Property Damage or the offense giving rise to such Personal and Advertising Injury takes place prior to the termination of such lease.
The coverage granted by this does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such Additional Insured.
Lessor of Premises
An owner or lessor of premises leased to the Named Insured, or such owner or lessor's real estate manager but only with respect to liability for Bodily Injury, Property Damage or Personal and Advertising Injury arising out of the ownership, maintenance or use of such part of the premises leased to the Named Insured, and provided that the Occurrence giving rise to such Bodily Injury or Property Damage, or the offense giving rise to such Personal and Advertising Injury, takes place prior to the termination of such lease. 391
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The cover does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such Additional Insured.
Mortgagee, Assignee or Receiver
A mortgagee, assignee or receiver of premises but only with respect to such mortgagee, assignee or receiver's liability for Bodily Injury, Property Damage or Personal and Advertising Injury arising out of the Named Insured's ownership, maintenance, or use of a premises by a Named Insured. The coverage granted by this does not apply to structural alterations, new construction or demolition operations performed by, on behalf of, or for such additional insured.
Provincial, Territorial or Governmental Agency or Subdivision or Political Subdivision Permits A provincial, territorial or governmental agency or subdivision or political subdivision that has issued a permit or authorization but only with respect to such provincial, territorial or governmental agency or subdivision or political subdivision's liability for Bodily Injury, Property Damage or Personal and Advertising Injury arising out of:
2. the following hazards in connection with premises a Named Insured owns, rents, or controls and to which coverage afforded by the Commercial General Liability Coverage Sections applies:
1. the existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoist-away openings, sidewalk vaults, street banners, or decorations and similar exposures; or
2. the construction, erection, or removal of elevators; or
3. the ownership, maintenance or use of any elevators covered by this Policy; or
3. the permitted or authorized operations performed by a Named Insured or on a Named Insured's behalf.
Permits does not apply to:
i. Bodily Injury, Property Damage or Personal and Advertising Injury arising out of operations performed for the provincial, territorial or governmental agency or subdivision or political subdivision; or ii. Bodily Injury or Property Damage included within the Products-Completed Operations Hazard. With respect to this provision's requirement that Additional Insured status must be requested under a written contract or agreement, the Insurer will treat as a written contract any governmental permit that requires the Named Insured to add the governmental entity as an Additional Insured.
Trade Show Event Lessor
With respect to a Named Insured's participation in a trade show event as an exhibitor, presenter or displayer, any person or organization whom the Named Insured is required to include as an Additional Insured, but only with respect to such person or organization's liability for Bodily Injury, Property Damage or Personal and Advertising Injury caused by:
1. the Named Insured's acts or omissions; or
2. the acts or omissions of those acting on behalf of the Named Insured in the performance of the Named Insured's ongoing operations at the trade show event premises during the trade show event.
Bodily Injury or Property
Damage included within Extension Products-Completed Operations Hazard Coverage section
Primary and NonFor the sole purpose of the Commercial General Liability Coverage Sections of this Policy, points 1. and 2. below shall be added to Other Condition
1. If the Named Insured has agreed in writing in a contract or agreement that coverage under the Commercial General Liability Coverage Sections of this Policy is primary and non-contributory in respect of an Additional 392
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Insured's own insurance, then coverage under the Commercial General Liability Coverage Sections of this Policy is primary, and the Insurer will not seek contribution from that other insurance.
For t
Insured is a Named Insured. 2. Otherwise, and notwithstanding anything to the contrary in point 1. above, the coverage afforded under the Commercial General Liability Coverage Sections of this Policy provided to an Additional Insured (as described in Blanket l Liability Coverage Sections) is excess of
any other insurance available to such Additional Insured. 393
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Paula Hardie, BA, CIP, CAIB
Account Manager
2650 – 666 Burrard St.
Vancouver, BC V6C 2X8
Canada
D +604.605.3654
E [email protected]
W willistowerswatson.com
Paula Hardie, BA, CIP, CAIB
Account Manager
October 21, 2021
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
To Whom It May Concern:
Subject: Avocette Technologies Inc.
Willis Towers Watson is the insurance broker for Avocette Technologies Inc. (Avocette). This letter is to confirm that Avocette has Contingent Employers Liability insurance under their Commercial General Liability as evidenced on the attached certificate. In British Columbia, Canada, Primary Worker’s Compensation insurance, including Employers Liability, is provided by the Provincial WorkSafe BC Program. The Contingent Employers Liability coverage will provide coverage for any employee who is ineligible for the WorkSafe BC coverage. Avocette does not have any US employees and, as such, is not required to purchase US Worker’s Compensation insurance.
The Endorsement adding the City of Cupertino as Additional Insured and the Waiver of Subrogation under Avocette’s 2021-2022 Commercial General Liability coverage are attached (see page 3 & 4).
Should you have any questions please do not hesitate to contact the undersigned.
Sincerely,
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PROFESSIONAL/ CONSULTING SERVICES AGREEMENT
1. PARTIES
This Agreement is made by and between the City of Cupertino, a municipal corporation (“ City”), and Avocette Technologies, Inc. (“Contractor”), a Corporation for Accela Consulting Services, and is effective on July 1, 2021 (“ Effective Date”).
2. SERVICES
Contractor agrees to provide the services and perform the tasks (“ Services”) set forth in detail in Scope of Services, attached here and incorporated as Exhibit A. Contractor further agrees to carry out its work in compliance with the City’ s Shelter In Place and Social Distancing Requirements, attached here and incorporated as Exhibit A-A.
3. TIME OF PERFORMANCE
3.1 This Agreement begins on the Effective Date and ends on June 30, 2022 (“ Contract Time”), unless terminated earlier as provided herein. Contractor’ s Services shall begin on the effective date and shall be completed by June 30, 2022. The City’s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’ s purchasing policy.
3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the Schedule of Performance, attached and incorporated here Exhibit B.
3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the Services on time.
4. COMPENSATION
4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed 87,000. 00 (“ Contract Price”), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’ s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City.
4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable completed and the amount due for the preceding month. Within thirty (30) days of completion of Services, Contractor must submit a requisition for final and complete payment of costs and pending
ATTACHMENT E
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claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any further payment or other obligations under theAgreement.
5. INDEPENDENT CONTRACTOR
5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits, worker’s compensation, or other benefits from the City.
5.2 Contractor’s Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Services in a competent and professional manner and according to the highest standards and best practices in the industry.
5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/ or certified to perform the Services as required by law and have procured a City Business License, if required by the Cupertino Municipal Code.
5.4 Subcontractors. Only Contractor’ s employees are authorized to work under this Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approved subcontractor.
5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement.
5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’ s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Agreement are not greater than they would have been had the determination not been made.
6. PROPRIETARY/CONFIDENTIAL INFORMATION
In performing this Agreement, Contractor may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details the disclosure of which to third parties may be damaging to City. Contractor shall hold in confidence all City information provided by City to Contractor and use it only to perform this Agreement. 396
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Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data.
7. OWNERSHIP OF MATERIALS
7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium ( collectively, “ Work Product”), prepared by Contractor in connection with this Agreement will be the exclusive property of the City upon completion of the work to be performed hereunder or upon termination of this Agreement, to the extent requested by City. In any case, no Work Product shall be shown to any third-party without prior written approval of City.
7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all Work Product arising out of this Agreement is considered “ works for hire” and all copyrights to the Work Product will be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights.
Contractor may use copies of the Work Product for promotion only with City’s written approval.
7.3 Patents and Licenses. Contractor must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented, trademarked, or copyrighted intellectual property if incorporated into the Services or Work Product of this Agreement.
7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City may use or modify the Work Product of Contractor or its sub- contractors prepared or created under this Agreement, to execute or implement any of the following:
a) The original Services for which Contractor was hired; b) Completion of the original Services by others;
c) Subsequent additions to the original Services; and/or d) Other City projects.
7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work Product, on recycled paper and copied on both sides, except for one single-sided original.
8. RECORDS
Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor’ s performance, benchmarks and deliverables, which must be available to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four ( 4) years from the date of City’ s final payment.
9. ASSIGNMENT
Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of 397
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City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Agreement and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent 50%) or more of the voting power of the business entity.
10. PUBLICITY / SIGNS
Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the City’ s contributions in making the project possible. The words “ City of Cupertino” will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews and newspaper articles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City.
11. INDEMNIFICATION
11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and consultants (“ Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) of every nature, arising directly or indirectly from this Agreement or in any manner relating to any of the following:
a) Breach of contract, obligations, representations, or warranties; b) Negligent or willful acts or omissions committed during performance of the Services; c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub- subcontractors; d) Unauthorized use or disclosure of City’s confidential and proprietary Information; e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party.
11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third- party claim. At City’ s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Agreement.
11.3 Contractor’ s duties under this section are not limited to the Contract Price, workers’ compensation payments, or the insurance or bond amounts required in the Agreement. Nothingin the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee.
11.4. Contractor’ s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement, a purchase order, or othertransaction.
11.5. Contractor agrees to obtain executed indemnity agreements with provisions identical to 398
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those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement.
Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder.
11.6. This Section 11 shall survive termination of the Agreement.
12. INSURANCE
Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor’ s compensation or terminating the Agreement.
13. COMPLIANCE WITH LAWS
13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor’ s ability to perform. Contractor is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act.
13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a “ public works” component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws.
13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired- Immune Deficiency Syndrome AIDS), or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or its employees or sub-contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision.
13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of 399
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Regulations. Contractor agrees to abide by the City’s rules governing gifts to public officials and employees.
13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek indemnification under Section 11 of this Agreement.
14. PROJECT COORDINATION
City Project Manager. The City assigns Nidhi Mathur as the City’ s representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. City reserves the right to substitute another Project manager at any time, and without prior notice to Contractor.
Contractor Project Manager. Subject to City approval, Contractor assigns Cynthia Tomey as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor’ s Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City’s Project Manager about the progress with the work or any delays, as required under the Scope of Services. City written approval is required prior to substituting a new Representative.
15. ABANDONMENT OFPROJECT
City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment, and will be given reasonable time to assemble the work and close out the Services. With City’s pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum of ten percent (10%) of the total time expended to date in the performance of the Services.
16. TERMINATION
City may terminate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Contractor closes out the Services and delivers the Work Product.
17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION
This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator’s award must be supported by law and substantial evidence and include detailed written findings of law and fact.
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18. ATTORNEY FEES
If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or other proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs.
19. THIRD PARTY BENEFICIARIES
There are no intended third party beneficiaries of this Agreement.
20. WAIVER
Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City’ s waiver of a breach shall not constitute waiver of another provision or breach.
21. ENTIRE AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature between the Parties, and supersedes any other agreement( s) and understanding( s), either oral or written, between the Parties. Any modification of this Agreement will be effective only if in writing and signed by each Party’ s authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between any term, clause, or provision of the main Agreement and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling.
22. INSERTED PROVISIONS
Each provision and clause required by law for this Agreement is deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. The Parties will collaborate to implement this Section, as appropriate.
23. HEADINGS
The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit, or amplify the terms or provisions of this Agreement.
24. SEVERABILITY/ PARTIAL INVALIDITY
If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this Agreement to carry out its intent. 401
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25. SURVIVAL
All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law, and Attorney Fees, shall survive the Agreement and remain in full force and effect.
26. NOTICES
All notices, requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission:
To City of Cupertino
Office of the City Manager
10300 Torre Ave.
Cupertino, CA 95014
Attention: Nidhi Mathur
Email: [email protected]
To Contractor:
Avocette Technologies, Inc
422 Sixth Street-2nd Floor
New Westminster BC V3L3B2
Attention: Cynthia Tomey
Email: Cynthia. Tomey@avocette. com
27. EXECUTION
The person executing this Agreement on behalf of Contractor represents and warrants that Contractor has full right, power, and authority to enter into and carry out all actions contemplated by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Contractor. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CITY OF CUPERTINO CONTRACTOR
A Municipal Corporation
By By
Name Name
Title Title
Date Date
Darrel Drab
VP, Local Government
Jul 7, 2021
Darrel Drab
Jul 10, 2021
CTO
Bill Mitchell
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APPROVED AS TO FORM:
HEATHER M. MINNER
Cupertino City Attorney
ATTEST:
KIRSTEN SQUARCIA
City Clerk
Date
Heather M. Minner
Jul 12, 2021
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Deliver to:
City of Cupertino
Attn: Nidhi Mathur
Phone: 408) 777 3377
E mail: nidhim@cupertino. org
Response Contact:
Darrel Drab
Avocette Technologies Inc.
Phone: 250) 389 2993 X229)
E mail: Darrel. drab@avocette. com
2nd Floor 422 Sixth Street, New Westminster, BC V3L 3B2 604) 395 6000
604) 395 6004
1 866 285 8885
GST 889977195 RT0001
Head Office:
Phone:
Fax:
Toll Free:
City of Cupertino
ServicePlus++
Operational Support Services Contract for Accela Automation 404
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ServicePlus++ Support Services Agreement
i
Service + Vendor Services Agreement
Between Avocette Technologies Inc. (the
VENDOR)
at the following address:
2nd Floor – 422 Sixth Street
New Westminster, BC
V3L 3B2
Phone: 604 395 6000
Phone Toll Free: 1 866 285 8885
City of Cupertino
the CLIENT)
at the following address:
Cupertino City Hall
10300 Torre Avenue
Cupertino CA 95014 3202
Phone: ( 408) 777-3377
CLIENT AND THE VENDOR AGREE TO THE TERMS OF THIS DOCUMENT AND IN THE SCHEDULE OUTLINE BELOW.
SCHEDULE A – SERVICES:
ServicePLUS++ AS AND WHEN - Provide support and consulting services in support of the Client’s Accela Automation system,
As Per Attached Schedule A.
Term:
From: July 1, 2021
To and including: June 30, 2022
Budget: Not to exceed $62,000
SCHEDULE B – PROJECTS:
Licensing Implementation Statement of Work.
As Per Attached Schedule B.
Term:
From: July 1, 2021
To and including: June 30, 2022
Budget: Not to exceed $25,000
READ TERMS ON THE FOLLOWING PAGES
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1 Schedule “ A” – “ As and When”
ServicePlus++ level of Service selected: AS AND WHEN
Hourly Service Requests rate: 130/ Hour
1 ServicePlus++™ AS AND WHEN Service
Avocette’ s ServicePlus++ AS AND WHEN service provides defined on going support services aimed at maintaining a stable Accela environment.
ServicePlus++ AS AND WHEN Service Desk hours: 9:00 17:00 PST Monday to Friday exclusive of Statutory Holidays
1.1 Service Levels
The following service levels are included with ServicePlus++ AS AND WHEN service in order to achieve the level of support required for CLIENT’ s Accela environment.
Service levels are divided into five priority levels and are monitored and measured against the service level commitment as shown below. Avocette uses the following definitions to measure service levels:
Acknowledge Request is an email from an Avocette representative that confirms that the request has been received and a ticket number has been assigned in our service request management system defined in section 2.1);
Incident Resolution Time is the time from when the incident is reported to the time a work around or temporary solution has been implemented to address the specific incident; Incident Closure is the time from when the incident was reported to the time to hand over for production deployment with a permanent correction for the incident. If the incident closure requires an Accela fix, the Incident Closure times will not apply and will require direct participation of Accela which Avocette will assist with. 406
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2 ServicePlus++ AS AND WHEN service levels
Priority Definition
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Priority 1 Service Disruption for major
applications/ systems and/ or has major
impact on business operations and/ or
impacts external customers
Guideline has significant business impact.
Exclusive of CLIENT network or system
issues not covered.
Exclusive of external disaster or disruption.
1 Hour
Phone call
Acknowledgement is
required
4 Hours
Phone call to
Accela
Customer
Support
Center every
60 minutes
with updates
if required)
3 Business
days
Priority 2 Partial service disruption for major
application/ system and/ or service
disruption for minor system and/ or has
moderate impact on business operations
Guideline affects business operation for at
least one department.
2 Hour 4 Hours 5 Business
days
Priority 3 Minor service disruption impacting 1 2 users significantly and/ or has minimal impact on
business operations. Does not affect service
delivery to external clients.
Service Request may be raised for incident
remediation and resolution refer section
2.1 for Service Request process).
1 Business day
Priority 4 Minor Service disruption with insignificant
or no impact on business operations
Workaround available
Guideline Affects 5people
Service Request may be raised for incident
remediation and resolution refer section
2.1 for Service Request process).
1 Business day
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3 Priority Definition
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Priority 5 Causes no service disruption with no impact
on business operations and does impact
service deliver to clients. Additional work
needed to perform some functions.
Service Request may be raised for incident
remediation and resolution refer section
2.1 for Service Request process).
5 Business days
Priority 3, 4 and 5 Service Levels are dependant on Avocette resource availability.
The following are required in order for Avocette to meet the above service levels:
CLIENT will provide all required subscription, software and/ or hardware licenses required to support the application.
The support team will not be on site at CLIENT’ s location and Avocette’ s support team will be able to access the CLIENT network remotely using an SSTP VPN connection to access the necessary application environments.
1.2 Service Level Reporting ( optional for As and When) Service level reporting is a key means of communication between CLIENT and Avocette. It is a forum to discuss the performance with respect to service levels, the accomplishments and challenges, and to have open honest dialog about the service delivery and relationship. It also allows potential risks to be discussed and addressed proactively. Service level reporting is provided through the Avocette service manager and as agreed to by the CLIENT. Service level meetings are recommended to review the report and to have dialog around the service delivery and support relationship.
1.2.1 Service Level Meetings
The following service level meetings are optional under AS AND WHEN service but Avocette recommends that they be conducted:
Weekly Prioritization meeting to review and rank incidents in priority.
Monthly Planning meeting to assess service request planning, status, priority and actions.
Annual Service Delivery review meeting to review the previous year and determine what adjustments are required for the next year.
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4 Attendees will include at least:
Avocette Service Delivery Manager
CLIENT Contract Manager
Note: Actual time spent conducting and documenting service level meetings will be charged at the contract rate.
Note: Avocette Weekly, Monthly, Quarterly and Annual meetings will occur via conference call unless otherwise requested.
1.2.2 Service Level Report
The service level report is prepared weekly and monthly and will include the following information:
An itemized list of all active requests/ incidents annotated by Avocette ticket number in the current month and previous month.
Hourly usage for each ticket in the current month, the previous month and overall.
The status of each ticket as of the end of the period as well as any information that will assist both CLIENT and VENDOR in resolving the ticket.
Service Delivery
Service delivery is oriented around two specific processes:
1) Incident Management
a. The handling of Break Fix situations. In CLIENT terminology this is the support’ type of requests that involve software fixes.
b. In the event of a Priority 1 or 2 incident, Avocette resources will be required to attend the Incident Report Meeting that will be scheduled by CLIENT within 48 hours of the incident.
2) Service Request Management
a. The handling of any request that is not expected to result in a software fix. This includes Maintenance, Enhancement and Operational non software related) requests. See section 5 for a list of optional services available.
The following sections will outline all the elements involved in Service Delivery and also walk through the expected workflow for both Incident Management and Request Management.
1.3 Service Request Management
Avocette uses a Service Management system to record and track all incidents and service requests under this contract. Once submitted, service request management application is used to support incidents and requests, assign tasks to internal team members and track time spent on specific requests.
The features offered are:
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5 Application Change Management by logging and tracking requests, bugs, and enhancements by application and client
Automatic email notifications within Avocette Systems for: new incidents; closed incidents; Escalations; Priority changes; Remediation, Resolution or Recovery; and Task Assignments Cross referencing of incident reports
Time recording for activities and reporting on effort
Root Cause capture
Control of user access to ensure security and privacy
The service request management application is configured for each client and can be modified to accommodate business related requirements for reporting. CLIENT will be defined along with the details necessary to provide the reporting and incident management required to meet CLIENT Service Level reporting needs.
1.4 Incident Management
The incident management process occurs when CLIENT has a request to fix a production problem with your Accela environment.
The goal of incident management is to:
Maintain service level objectives; and
Return to the normal service level as soon as possible with the smallest impact on the business and user.
The process is triggered when the authorized CLIENT individual or group makes the request through:
Entry into the Cherwell Service Request Management System E mail to Avocette for non emergency items only)
Phone call to Avocette for emergency and high priority issues, phone is mandatory)
1.4.1 Incident Management Process
The following describes how Avocette will respond to an incident request. This process can be reviewed and adjusted if necessary to meet CLIENT’ s specific needs. As noted previously, some incident may require an Accela fix and in those cases Avocette will support the reporting and communication with Accela.
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6 Avocette Application Management
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1.1 Request Support
1.2 Acknowledge
Request
1.3 Create Incident
Receive
Acknowledge
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Update
Request
1.5 Resolve issue
within SLA
1.4 Assign Team
Resources
1.7 Recover
Application
1.6b
Approve Closure
Phone/ Email
Priority 1 or 2? HandoffYes Warm
No
Email/ Phone Acknowledgement
Application
Recovered?
Yes
No
1.6a
Request Closure
Figure 1: Procedure for Incident Management.
Task Task Actor( s)
1.1 The CLIENT point- of-contact or Customer Service Center contacts the Avocette Service Desk via toll-free telephone number or email address.
CLIENT
application pointof-contact
1.2 All contacts are acknowledged upon receipt. Acknowledgement can be through email or by phone. In the event an incident is submitted which in the judgement of the service desk should be a level 1 or 2 incident the service desk will acknowledge by phone and recommend an upgrade of the incident priority.
Avocette Service
Desk
1.3 Avocette Service Desk creates a ticket for the request, assigning the request to Avocette’ s primary support person and Service Delivery Manager.
Automatic email notifications are generated and sent to the Avocette Service Manager.
Avocette Service
Desk
1.4 If the request is a priority 1 or 2, the Avocette Service Desk speaks to the support resource and Service Delivery Manager directly to ensure the request is received in a timely manner ( i.e., warm handover). CLIENT and Avocette’ s managers are informed of priority 1 and priority 2 requests.
The Service Delivery Manager liaises with the primary resource to coordinate a solution, and may approach service manager to assign additional support team resources to recover and resolve the issue.
Avocette
Support Team
1.5 The support team works to recover the issue within the service levels. This may involve working directly with CLIENT staff to provide access to data, database logs, performance data, etc., in order to resolve the incident.
The support team promotes the fix to the CLIENT environment and completes the necessary requests to migrate to production.
Avocette
Support Team
1.6a If resolution of the issue provides recovery of the application, the Service Delivery Manager will seek approval from CLIENT to close the request.
CLIENT point-ofcontact
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7 Task Task Actor( s)
1.7 If resolution of the issue does not also provide recovery of the application, the support team will work to complete the long-term solution to the issue.
Avocette
Application
Support Team
1.6b Avocette obtains approval from the CLIENT point-of-contact to close the request. The incident is only considered closed once it is successfully deployed to production and verified as being resolved by the CLIENT point- of-contact.
CLIENT point-ofcontact
1.5 Request Management
Avocette’ s request management services support the management of service requests. This includes requests for maintenance, enhancements or other operational non software) requests. The goal of Request Management is to keep track of all requests, allow prioritization of the requests, track time spent, and report on the status of each request. Service request may be raised to address all Priority 3, 4 and 5 incident remediation and resolutions.
1.5.1 Request Management Process
The following describes how Avocette will respond to a service request.
Figure 2: Procedure for Maintenance, Enhancement and Operational Requests Task Task Actor( s)
1.1 The CLIENT point of contact creates the initial service request by documenting the specific request and sending this to the Avocette’ s Service Desk by sending an email. A template is used to document the Service Request.
This will be logged if not already initiated as a service request and assigned to the service delivery manager to assess.
CLIENT
application
point of
contact
1.2 The Service Delivery Manager will coordinate the team to assess the Service Request, complete the request with impacts and estimates, and return the Avocette
Support Team
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8 Task Task Actor( s)
service request to CLIENT for approval. The development of the service request may involve collaboration between CLIENT and Avocette to ensure the requirements are understood and impacts accurately accounted for.
CLIENT will review and approve the Service Request. CLIENT
1.3 The service delivery manager will then schedule the work to be completed based on the agreed timeline expectations in the service request.
Avocette
Support Team
1.4 The service request is executed and the deliverables provided to CLIENT. Avocette Support Team
1.5 CLIENT will review the deliverables and complete any necessary user acceptance testing before giving the approval to proceed to production or accept the deliverable.
CLIENT
Service Requests must be approved and signed by the CLIENT Contract Manager and Avocette’ s Client Manager before any work proceeds.
1.6 Approach to Maintain Service Levels
Avocette will assign qualified and cross trained resources to the support of the Supported Application Components. The support team will include a primary and backup resource fully trained in the application as well as the support procedures necessary to adhere to CLIENT standards. The Service Delivery Manager will ensure that the backup resource is ready in the event that the primary resource is unavailable for any reason. The primary goal is to ensure that service levels are maintained regardless of the individual schedules of the support team.
In addition, the Avocette Service Desk is provided with primary and backup resource contact information and will be kept informed when the primary resource is unavailable.
Cross training of the backup resources will be provided as part of initial transition to support and will occur annually thereafter as a refresher.
Avocette will maintain a repository for information, materials and details pertaining to support of the Supported Application Components Knowledge Management). This will also include details on the specific CLIENT policies and procedures that will apply to this support service.
The Service Delivery Manager will ensure that there is adequate coverage during any absences or traditional vacation periods Christmas Holidays) and will also communicate any upcoming absences to CLIENT during the service level report meetings.
In the event of a disaster in the Avocette Offices, CLIENT will be notified immediately, provided direct contact phone numbers for the support team, and support resources will work from home. 413
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9 1.7 Facilities and Equipment Requirements
CLIENT is not required to provide any permanent desk or office space. However, Avocette may require access to a drop in station at CLIENT from time to time during onsite visits. Avocette resources will require remote access into the CLIENT environment using a secure VPN or similar connection.
Support Team
Avocette’ s support team is comprised of the following roles and provides on going operation support for CLIENT’ s Accela environment as follows:
Role Role Description
CLIENT Contract Manager/ Point of Contact The CLIENT will assign a CLIENT Contract Manager/ Point of Contact to be the primary contact for the Avocette Service Delivery Manager. Note that other roles may be assigned as required) The CLIENT Contract manager/ Point of Contact will:
1. Facilitate communications between Avocette and the
CLIENT to clarify incident/ service request particulars as needed)
2. Facilitate communications between Avocette and other CLIENT departments or technical areas in order to
diagnose and resolve the request
3. Arrange for User Acceptance Testing as required
4. Provide priorities and guidance to the Avocette support team for outstanding issues
5. Complete resolution details in the support tracking
system and closing the ticket
6. Attend monthly service level meetings
7. The following additional responsibilities are primarily related to Service Request Management:
8. Facilitate Authorization of work to proceed.
9. Manage communication with other application
stakeholders on implementation or significant changes
10. Facilitate approval of requirements and functional
specifications
Avocette Service Desk Support Analyst Avocette’ s Service Desk is staffed with Service Desk Support Analysts who are responsible for receiving and acting upon incidents reported by ServicePlus++ clients.
The Avocette Service Desk Support Analyst:
1. Responds to incidents from ServicePlus++ clients
submitted by email or phone.
2. Provides basic user support as required such as password resets and other user support issues.
3. Based on the priority of the incident takes appropriate action to respond to the incident by performing a warm
handoff.
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10 4. Provides regular updates for high priority incidents.
Avocette Account Manager An Avocette Account Manager is assigned to each ServicePlus++ client and will be the person responsible for ensuring Avocette meets its commitments under this
contract. The Client Account Manager is also responsible for approving service requests on behalf of Avocette.
The Avocette Account Manager will:
1. Be responsible for Avocette’ s commitments under the contract.
2. Be available when necessary to meet with the client to address issues and concerns.
3. Approve Service Requests in a timely manner.
Service Delivery Manager A Service Delivery Manager is assigned to each ServicePlus++ client and will be the primary contact for managing incident resolution and service requests. Avocette always assigns a backup Service Delivery Manager, typically the Subject
Matter Expert, to each account so that service disruptions are avoided in the case of the primary service delivery manager not being available.
The Service Delivery Manager will:
1. Be responsible for ensuring service levels are met for all reporting incidents and communicating status of incident resolution processes to stakeholders
2. Manage the delivery team and ensures support coverage is in place to meet or exceed all service levels
3. Ensure proper communication to CLIENT regarding
release scope and expected delivery schedule and status during the implementation process
4. Provide estimates for Service Requests and work with the CLIENT Contract Manager to set priorities
5. Work with the CLIENT Contract Manager to develop
release plans for Service Requests
6. Ensure all required authorizations have been provided prior to initiating work or conducting migrations
7. Be responsible for adjusting the release processes if necessary in order to improve quality, reliability,
timeliness or overall customer satisfaction with the
releases and documenting the revised processes
8. Ensure decisions, priorities and action items are properly documented and communicated to the team members
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11 9. Work with the CLIENT Contract Manager and the
Avocette Support Team to prioritize incident resolution and closure
10. Conduct regular team meetings involving release scope, scheduling and status
11. Reports regularly to the Avocette Account Manager
Subject Matter Experts Business Analyst A primary and secondary Subject Matter Expert is assigned to each ServicePlus++ client and is responsible for providing analysis of and recommendations for resolving incidents and providing analysis and design for service requests.
The Subject Matter Expert will:
1. Be responsible for understanding the business needs in relation to the application
2. Gather requirements for enhancements or service
requests
3. Document both as is” and to be” to enable technical
team members to effectively configure the application
4. Liaise with CLIENT staff to understand and document
reporting requirements
5. Work with CLIENT to understand business problems in
relation to the application
6. Works with the Avocette Service Delivery Manager to
effectively timetable and deliver business analysis tasks as part of releases or service requests
Database Administrator Avocette’ s core team also includes a Database Administrator.
The Database Administrator is not assigned to the team but is available as and when needed.
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Schedule “ B” – “ Projects”
Project Overview
The City of Cupertino is expanding their current Accela Civic Platform Implementation to include functionality which will track Licences as well as their applications and renewals.
Project Objectives
The purpose of this project will be to allow the City of Cupertino facilitate the application of Business Licences within the Accela Civic platform. The following are the major objectives:
A new Licensing module and associated records to streamline the licensing process.
The new system functionality will allow the City of Cupertino to process applications, maintain licenses and renewals in Accela.
Methodology Overview
The Licensing Module Implementation project will follow a waterfall approach and will be completed in six stages. The data conversion stage will run concurrently to the Analysis and Documentation and Build and QA stages.
Scope
The following section describes the high level scope for each stage of the project to meet the business objectives of City of Cupertino.
Stage Scope
Project Initiation Detailed planning and development of SOW and Project Plan, including approvals.
Analysis and
Documentation
Requirements analysis and documentation of system configuration design.
Build and QA Configuration, based on approved requirements and design and QA testing including test cases and remediation of defects.
Data Conversion Data conversion from New World Licensing system to Accela.
UAT and Remediation UAT including test cases and remediation of defects GO-Live Implementation readiness and final go-live
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Project Timeline
Once Project Initiation is complete and the Project Charter is approved, the overall timeline to complete the project deliverables is approximately 6 months.
Phase 1 will have an approximate timeline of 6 weeks.
Stage Approximate Dates
Project Initiation Complete before SOW Sign Off
Analysis and Documentation June 7 – June 18
Build and QA June 21 – July 9
Data Conversion June 14 – July 9
UAT and Remediation July 12 – July 23
GO-Live July 23
Project Estimate
The Special Events project will be implemented as fixed price based on a blended rate of 130/ hour. The following estimation is based on assumptions and scope within this document, based on knowledge of complexity and scope at the time of signing. Both Avocette and City of Cupertino agree, there may be unforeseen challenges that can affect this estimate, and that adjustments may need to be made.
Avocette will monitor progress against estimates for deliverables and will consult the City of Cupertino to adjust if necessary. The City of Cupertino and Avocette agree that the if additional funds are required, Avocette will prepare and present a Change Request for additional funds based on a revised estimate to complete mutually agreed upon deliverables. The City of Cupertino will not unreasonably withhold or delay approval of such Change Requests. Avocette will communicate as early as possible, and as soon as it is known that a change request will be required.
Project Estimates Estimated Units Estimated Cost
Project Initiation - -
Analysis and Documentation 20 $ 2,600.00
Build and QA 44 $ 5,720.00
Data Conversion 40 $ 5,200.00
UAT and Remediation 20 $ 2,600.00
GO-Live 10 $ 1,300.00
Project Management and Meetings 16 $ 2,080.00
Total 150 $ 19,500.00
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Deliverables
The following section describes the specific deliverables that will be executed to meet the business objectives and business requirements of the City of Cupertino. In support of the implementation effort as described above, Avocette will provide the following detailed implementation services. For each deliverable, a description is provided as well as criteria for acceptance of the deliverable.
Deliverable # Deliverable Name
1 Project Initiation
2 Analysis and Documentation
3 Build and QA
4 Data Conversion
5 UAT and Remediation
6 GO-Live
Project Management
Avocette’ s Project Manager will lead the project team to ensure all tasks are progressing according to the schedule. The Project Manager is empowered to make decisions on behalf of Avocette to best suit the needs of the City of Cupertino implementation and will work closely with the City of Cupertino Project Manager providing oversight to ensure synchronized execution of this agreement. Through the weekly status meetings, the Avocette Project Manager will coordinate with the City of Cupertino Project Manager to review and report on the following activities:
Status Reporting
Resource Management
Executive Project Oversight (Avocette)
Deliverable 1: Project Initiation
The following key deliverable are completed and accepted in this stage:
Deliverable Name Description
Project Initiation Kick off the project and develop statement of work In terms of specific output, the following will be executed for this deliverable:
Statement of Work
Project Plan – to be completed by Cupertino
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Deliverable 2: Analysis and Documentation
The following key deliverable are completed and accepted in this stage:
Deliverable Name Description
Analysis and Documents Requirements analysis and documentation of system configuration design.
In terms of specific output, the following will be executed for this deliverable:
Analysis data gathering activities including workshops and remote analysis sessions Analysis Documents
Acceptance Criteria:
Completion of Analysis Sessions
Delivery of Analysis documents resulting from analysis
Deliverable 3: Build and QA
Avocette will develop the solution in accordance with requirements established and documented in Deliverable 2: Analysis Sessions, Design and Documentation. Avocette will perform QA to ensure the implemented system aligns with the requirements outlined in Deliverable 2: Analysis Sessions, Design and Documentation.
Deliverable Name Description
Build and QA Build the solution and QA test of the system In terms of specific output, the following will be executed for this deliverable:
Completed Solution as detailed in the analysis documents QA Testing Results
Acceptance Criteria:
Demonstration of the solution
Approve the Solution is as detailed in the analysis documents Review and acceptance of QA Testing Results (verification that the test results are within acceptable tolerances)
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Deliverable 4: Data Conversion
This deliverable is comprised of the development of data conversion scripts to import existing licensing data from the New World system into Accela and the running of the scripts. The deliverable includes two test runs. A final PRODUCTION run will be completed during Deliverable 6: Go Live.
Deliverable Name Description
Data Conversion Data conversion from New World Licensing system to Accela.
In terms of specific output, the following will be executed for this deliverable:
Two test imports of data into SUPP environment
Necessary remediation to prepare the data for PRODUCTION Acceptance Criteria:
Successful import of existing data into SUPP environment Sign off that the data conversion is complete and ready for PRODUCTION Deliverable 5: User Acceptance Testing and Remediation
This deliverable is comprised of the assistance Avocette will provide to allow the City of Cupertino resources to accept that the solution meets the requirements as documented. Avocette will assist the City of Cupertino in the testing and validation of the solution and its readiness to be released for Production.
Deliverable Name Description
User Acceptance Testing and
Remediation
Provide UAT support for the City of Cupertino and
remediate any issues found.
In terms of specific output, the following will be executed for this deliverable:
Resolution of issues resulting from User Acceptance Testing Fully tested system that is ready to move to production 421
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Acceptance Criteria:
Completion of UAT
Sign off that the solution is complete and ready for PRODUCTION Deliverable 6: GO-Live and Support
Production Go Live date is defined as the official date in which the solution moves from the test environment to production for daily City of Cupertino usage. This date will be agreed to by both Avocette and the City of Cupertino at project inception. In the weeks prior to moving to Production, Avocette will assist in final system validation, staff preparation assistance and training, and coordination of deployment.
Deliverable Name Description
Go-Live and Support Provide pre deployment and go-live support to facilitate the implementation of the solution
In terms of specific output, the following will be executed for this deliverable:
Develop and deliver the Deployment Checklist
Transfer of configuration data from Non-Prod to Production Acceptance Criteria:
Execution of deployment from Non-Prod to Production
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Appendix A: Definitions
The following definitions are used throughout this proposal:
Acknowledge Request” means an email from an Avocette representative that confirms that a request has been received.
Additional Support Services” means any additional work requested by CLIENT beyond the Base Support Services.
Additional Support Services Fees” means the monthly fee paid to the VENDOR for the delivery of Additional Support Services.
Approved Service Request” means a Service Request or a VENDOR Service Proposal for which the proposal and budget estimate provided by VENDOR has been approved by CLIENT and VENDOR has been instructed to proceed with delivery of the subject matter.
Base Support Services Fee” means the monthly fee paid to the VENDOR for the delivery of Base Support Services.
CLIENT Point of Contact” means the person in CLIENT responsible for managing the contract and approving all expenditures. This person is also the CLIENT reference of all administrative matters associated with this contract.
Contract Manager” means the Avocette Manager responsible for the delivery of Managed Services across multiple clients. The Service Delivery Manager reports to the Contract Manager. The Contract Manager is present at Monthly, Quarterly and Annual Service Level Review meetings with CLIENT.
Customer Support Center CSC)” means CLIENT’ s first level helpdesk service if used. The Customer Support Center is responsible for declaring the initial priority of an Incident.
Incident” means an event that degrades or disrupts the normal operation of the application that is reported to the Service Desk and given a unique tracking number.
Incident Resolution Time” means the time to complete the permanent corrective solution resolve the root cause).
On call Hours” means those hours beyond the Standard Business Day. On call services are available on request by CLIENT with one day’ s notice.
Preapproved Expenses” means those expenses incurred by the VENDOR in the execution of this contract including travel and living expenses as preapproved by the CLIENT.
Priority” means the degree of impact that an incident has on CLIENT business areas and clients. The priorities are graded from 1 through 5 and agreed response and resolution times are based on these priorities in the form of a Service Level Agreement. The Priority definitions can be found in Section 2 Service Levels.
Services” means Base Support Services and Additional Support Services. 423
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Service Desk” means the service desk operated by the VENDOR providing a single point of contact and 2nd level support for all Services Incidents, and 1st level support for all Service Requests and Approved Service Requests for In Scope Servers and In Scope Applications.
Service Delivery Manager” means the Avocette resource responsible for ensuring CLIENT service levels are met and that CLIENT remains satisfied with the service being provided. The Service Delivery Manager manages the support team, ensures adequate coverage is in place, provides communication to CLIENT during incident recovery periods, and prepares the Service Level Reports. The Service Delivery Manager is present at Monthly, Quarterly and Annual Service Level review meetings at CLIENT.
Service Levels” means the operational performance required of, and guaranteed by, the VENDOR in the delivery of the Services, as set out in Section 2.
Service Management Reporting” means the design, generation and delivery by the VENDOR of reports and reporting sufficient to meet CLIENT’ s operational management requirements for the Services.
Service Request” means a formal request issued by CLIENT for maintenance upgrades, preventative maintenance) and enhancements.
Service Requests are developed by CLIENT and typically include the description of the requested service, scope, expected deliverables and timeline expectations. Avocette will provide estimates for Service Requests within 5 business days. All service requests are sent to the Avocette Service Desk and given a unique tracking number.
Standard Business Day” will be 7:00 a.m. to 5:00 p.m. Monday to Friday, not including Statutory Holidays.
Statutory Holidays” In the United States means New Year’ s day, Martin Luther King day, Presidents Day, Memorial day, Independence day, Columbus Day, Veteran’ s day, Thanksgiving day, Christmas day, Christmas day holiday and in Canada means New Year’ s Day, Family Day including Islander day, Louis Riel day, Viola Desmond day), Good Friday, Easter Monday, Victoria Day, Canada Day, Civic holiday including AB, BC, SK, ON, NB, NU), Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, and Boxing Day.
Support Team” means the Avocette resources that are involved in the day to day support of the Supported Application Components.
Ticket” is a generic term for a unique tracking number that is generated by the Customer Service Centre or Avocette’ s service request management application. 424
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1 Exhibit A-A – SHELTER IN PLACE AND SOCIAL DISTANCING REQUIREMENTS A. Health Laws Acknowledged. It is acknowledged that Consultant’ s/ Contractor’ s Contractor”) duty to comply with Laws, as defined in Section 13 of the Contract/ Agreement Contract”), includes immediate compliance by Contractor and its subcontractors with the restrictions on travel and the Social Distancing Requirements set forth in the most recent health order issued by the County of Santa Clara Health Department in response to the COVID- 19 pandemic, and any subsequent amendments or superseding orders thereto (the “Health Order”), and any other local, state, or federal laws that have been or may be enacted in response to the COVID- 19 pandemic ( collectively, “ Health Laws”).
B. Health Order Compliance. Contractor shall comply with any restrictions on travel and social distancing requirements in the Health Order when preforming work under this Contract. If a scope of work item, notice to proceed, or work order under this Contract specifies work that cannot be performed in compliance with the Health Order or other Health Laws, Contractor shall refrain from conducting the work and immediately inform the City.
C. Individuals at High Risk of Severe Illness. Nothing in this Contract shall be interpreted to require any person at high risk of severe illness from COVID- 19 to leave their residence to perform work under the Contract. Contractor will inform the City if other arrangements for the work must be made, and City will do so, with no penalty to Contractor, although Contractor will not be compensated for work performed by the City or third parties. Information from the Center for Disease Control (“ CDC”) on “high risk” categories is available at the CDC' s website at:
https:// www.cdc.gov/ coronavirus/ 2019-ncov/ specific- groups/ people-at-higher-risk.html.
D. Health Order Requirements and Best Practices. Contractor will immediately undertake all appropriate measures to ensure compliance with the Social Distancing Requirements in the Health Order by all individuals performing work under this Contract, including Contractor' s or any subcontractor' s workers, employees, representatives, vendors, or suppliers (collectively, workers"), and shall maintain these measures for as long as required by the Health Order or other Health Laws. As long as required by the operative Health Order or other Health Laws, these measures shall include, but are not limited to, the following:
1. Meetings/ Site Access. Use electronic alternatives to in person meetings, e.g., conference calls, video-conferencing, etc., to the greatest extent possible. Limit access to any project site or any work area to workers who are necessary to perform in-person work. Require non-essential personnel to work from home to the extent possible. Avoid all non-essential travel.
2. Distancing. Where workers perform in-person work at a project site or a work area, prohibit workers from being less than six feet apart, unless and only to the extent that would compromise worker safety or violate safety Laws for specific operations. Prohibit handshaking or any physical contact among workers, with the sole and limited exception 425
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2 of any physical contact required for worker safety or to comply with safety Laws.
Prohibit workers from sharing a vehicle.
E. Changed Requirements. It is understood and acknowledged that circumstances pertaining to the COVID- 19 pandemic are evolving rapidly and that new local, state, or federal requirements may modify the requirements under this Exhibit. Contractor agrees to work cooperatively with the City to implement new or changed requirements as quickly as possible.
F. Subcontracts. Contractor shall include the terms of this Exhibit in all subcontracts and require any agents, subcontractors, or subconsultants to comply with its provisions. 1229192. 7
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Exh. D-Insurance Requirements for Design Professionals & Consultants Contracts 1 Form Updated Sept. 2019
Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable toCity.
INSURANCE POLICIES AND MINIMUMS REQUIRED
1. Commercial General Liability ( CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence ( ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/ location ( ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be " primary and non-contributory," will not seek contribution from City’ s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13).
c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’ s own insurance or selfinsurance shall be called upon to protect City as a named insured.
2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000, 000 per accident for bodily injury and property damage.
3. Workers’ Compensation: As required by the State of California, with Statutory Limits and Employer’ s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease.
Not required. Consultant has provided written verification of noemployees.
4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant’ s profession, with limits no less than $2,000,000 per occurrence or $2,000,000 aggregate. If written on a claims made form:
a. The Retroactive Date must be shown and must be before the Effective Date of theContract. b. Insurance must be maintained for at least five (5) years after completion of theServices. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase “ extended reporting” coverage for a minimum of five (5) years after completion of theServices.
OTHER INSURANCE PROVISIONS
The aforementioned insurance shall be endorsed and have all the following conditions and provisions:
EXHIBIT D
Insurance Requirements
Design Professionals & Consultants Contracts
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Exh. D-Insurance Requirements for Design Professionals & Consultants Contracts 2 Form Updated Sept. 2019
Additional Insured Status
The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers Additional Insureds”) are to be covered as additional insureds on Consultant’ s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’ s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used).
Primary Coverage
Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’ s insurance and shall not contribute to it.
Notice of Cancellation
Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums.
Waiver of Subrogation
Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either:
the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City.
Acceptability of Insurers
Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better.
Verification of Coverage
Consultant must furnish acceptable insurance certificates and mandatory endorsements ( or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term.
Subconsultants
Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’ s insurance policies.
Higher Insurance Limits
IfConsultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant.
Adequacy of Coverage
City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. 428
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SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
WRITTENDATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL DAYS
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL
IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES.
PROFESSIONAL LIABILITY
ACCOUNT MANAGER
NON-OWNED AUTOS
WILLIS CANADA INC., A WILLIS TOWERS WATSON COMPANY
DATE ( MM/DD/YY)
POLICY EFFECTIVE POLICY EXPIRATION
CANCELLATION
INSRLTR
ACORD 25 (2001/08) ACORD CORPORATION 1988
INSURER A:
COVERAGES
CERTIFICATE HOLDER
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
TYPE OF INSURANCE POLICY NUMBER LIMITS
PRODUCER
INSURED
GENERAL AGGREGATE
EL EACH ACCIDENT
EL DISEASE - POLICY LIMIT
EL DISEASE - EA EMPLOYEE
BODILY INJURY
EACH OCCURRENCE
AGGREGATE
COMBINED SINGLE LIMIT
PROPERTY DAMAGE
PRODUCTS - COMP/ OP AGG
PERSONAL & ADV INJURY
EACH OCCURRENCE
DAMAGE TO RENTED
MED EXP ( Any one person)
AUTO ONLY - EA ACCIDENT
OTHER THAN
AGG
WC STATUTORY LIMITSOTHER
DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES/ EXCLUSIONS ADDED BY ENDORSEMENT/ SPECIAL PROVISIONS
GENERAL LIABILITY
AUTOMOBILE LIABILITY
ANY AUTO
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON- OWNED AUTOS
OCCUR
DEDUCTIBLE
EXCESS/ UMBRELLA LIABILITY
WORKER' S COMPENSATION AND
OCCUR
COMMERCIAL GENERAL LIABILITY
GEN' L AGGREGATE LIMIT APPLIES PER:
CLAIMS MADE
ANY AUTO
ANY PROPRIETOR/ PARTNER/ EXECUTIVE
EMPLOYERS' LIABILITY
OFFICER/ MEMBER EXCLUDED?
If yes, describe under
GARAGE LIABILITY
DATE ( MM/ DD/ YY) DATE ( MM/ DD/ YY)
AUTHORIZED REPRESENTATIVE
INSURER B:
INSURER C:
INSURER D:
INSURER E:
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
INSURERS AFFORDING COVERAGE NAIC#
ADD' LINSRD
POLICY LOC
PROJECT
CLAIMS MADE
RETENTION $
SPECIAL PROVISIONS below
OTHER
PREMISES ( Ea occurence)
Ea accident)
Per person)
BODILY INJURY
Per accident)
Per accident)
AUTO ONLY:
EA ACC
ACORDTM
MPR 2755219
HIRED AUTOS $ 75,000
09/30/2020
09/30/20
THE CITY OF CUPERTINO, ITS CITY COUNCIL, OFFICERS, OFFICIALS, EMPLOYEES, AGENTS, SERVANTS AND VOLUNTEERS ARE INCLUDED AS ADDITIONAL
INSURED( S) AS RESPECTS TO LIABILITY COVERAGE( S) WHEN REQUIRED BY WRITTEN CONTRACT, SUBJECT TO POLICY TERMS & CONDITIONS, AS PERTAINS TO THE OPERATIONS OF THE INSURED. AS PER ATTACHMENT ( PAGE 2) 09/30/21
WILLIS CANADA INC., A WILLIS TOWERS WATSON COMPANY
2650 - 666 BURRARD STREET
VANCOUVER, BC V6C 2X8
PLP 2878253 09/30/20 09/30/21 $ 2,000,000 PER CLAIM
2,000,000 PER AGGREGATE
A
AVOCETTE TECHNOLOGIES INC.
2ND FLOOR - 422 SIXTH STREET
NEW WESTMINSTER, BC V3L 3B2
MPR 2755219
INCLUDING CONTINGENT
EMPLOYER’ S LIABILITY)
09/30/20 09/30/21
4,000,000
1,000,000
4,000,000
4,000,000
X
X
X
X
X
30 THE CITY OF CUPERTINO
10300 TORRE AVE.
CUPERTINO CA 95014
A
A
CONTINENTAL CASUALTY COMPANY
CERTIFICATE OF LIABILITY INSURANCE
119421Serial #
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MPR 2755219 Issued on November 27, 2019 Page 1
Change Endorsement
Named Insured: Avocette Technologies Inc.
Policy Period: From: September 30, 2019 To: September 30, 2020 Policy Number: MPR 2755219
Endorsement Type: Change Endorsement
Endorsement Number: 1
Endorsement Effective Date: October 24, 2019
This endorsement changes the policy, please read it carefully.
This endorsement modifies insurance provided under the following:
Commercial General Liability Coverage
It is agreed that the following item(s) on the Additional Insured Schedule have been added as outlined below:
Additional Insured Schedule
Description Status
The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers, 10300 Torre Avenue Cupertino, CA 95014 USA
But only with respect to
liability arising out of the
operations performed by or
on behalf of the Named
Insured.
New
It is further agreed that the following Waiver of Subrogation – Designated Person( s) or Organization forming part of Commercial General Liability coverage is added to the policy as outlined attached.
All other terms and conditions remain unchanged.
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MPR 2755219 Issued on November 27, 2019 Page 2
Endorsement
Named Insured: Avocette Technologies Inc.
Policy Period: From: September 30, 2019 To: September 30, 2020 Policy Number: MPR 2755219
Endorsement Title / Reference: Waiver of Subrogation - Designated Person(s) or Organization Endorsement Type: Condition
Endorsement Number: CGL-CM 00-096 CE 103118
Endorsement Effective Date: October 24, 2019
The following clause forms part of the ‘ Common Policy Terms and Conditions’, solely in connection with the ‘ Commercial General Liability Coverage Section’ to this Policy.
Waiver of Subrogation - Designated Person(s) or Organization In the event of any payment under this Policy, the Insurer shall waive their rights of recovery against any person( s) shown in the Schedule below where such waiver has been included as part of a contractual undertaking by the Insured, but this waiver shall apply only in respect to the specific contract entetred into prior to the date of Loss, existing between the Insured and such person(s), and will not be construed to be a waiver in respec t to other operations of such person( s) in which the Insured has no contractual interest.
SCHEDULE
Name of Person( s) or Organization:
All other terms and conditions not otherwise modified by this endorsement remain unchanged. 431
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Paula Hardie, BA, CIP, CAIB
Account Manager
2650 – 666 Burrard St.
Vancouver, BC V6C 2X8
Canada
D + 604.605. 3654
E paula. hardie@willistowerswatson. com
W willistowerswatson. com